Alternative Dispute Resolution
Another relatively modern trend is alternative dispute resolution. What do you think about that?
Well, if you look at fundamentals, the first point about it was that settlements occurred in my day between barristers opposing each other. They would settle on the Court steps, or the steps of the Inns of Court, and they’d know what should be settled and they would then settle it. You’d have the solicitors preparing a brief – that was their function – and you’d have the barristers prepared to argue the case in Court. Then, when it was properly prepared, proper thought could be given to settling it. Now what did you have in place of that? What you have are solicitors who as soon they get the case, you know, they work for the case to be mediated right from the start. This is before they’ve looked at it properly and discovered whether there are any points that are difficult or anything of that sort or before they get an opinion from anybody. Indeed, the practice of getting counsel’s opinion seemed in my last years at the Bar to be terminally ill. I just don’t think the solicitors are doing their job and, with mediations, they are being given a very attractive way of getting out of doing their job properly, of doing the hard work. They say, for example, “Well, this is a personal injury matter and the fellow has lost his leg and he should get $50,000” or whatever it happens to be. That’s just off the top of the solicitor’s head. That’s what they’re going to go for and then somebody or other becomes the mediator. So the solicitor gets there for the mediation. He doesn’t know if there are all necessary proofs from the client. He has some reports from doctors. He has a bit of stuff. He also probably has several case files full of things like the fellow’s bank statements years before he had the accident. Completely irrelevant stuff, but he thinks it all needs to be briefed to the barrister because if he doesn’t he thinks he might be sued for negligence. Well, you know the thinking; someone might find it relevant so I better send it up. Anyway, I can copy it all and that justifies part of my fees. The mediator, he mightn’t be much better briefed than the barristers are, and he’s got a range that goes from, say, $10,000 to $60,000. So he gets some sort of figure and he says, “Well, I think that would be a good figure”. Now what’s happened of course is that you will find there’s been a breach of ethics by the solicitor because he hasn’t really tried to get the best figure for his client. He doesn’t really know what the best figure is and that is because he hasn’t prepared the case anywhere near enough to know any better. Then if the solicitor is a bit crooked, he just goes one stage further than what I’m talking about and he says, “Well, I reckon my costs in this are $50,000” or whatever it is. Some figure just jumps out of the air. So he says to himself, “I need to get that from the settlement”. So once he gets to that figure in the mediation, he’s happy. He is then in conflict with his client. He wants the client to accept the offer because his fees will be squared away. So, the primary motivation for the mediation has become an exercise in getting the solicitor paid rather than compensation for his client.
Construction of the Inns of Court
Amongst your achievements as President was the instrumental role you played in the construction of the Inns of Court. Persuading so many barristers to agree on that proposal must count as one of your greatest feats of advocacy?
Well, I don’t think there were too many speeches about it. There were a couple of meetings but I think that it was probably a question of getting the building going. We had a couple of meetings, trying to get with SGIO, in fact, some development up and running. It didn’t succeed but there were discussions at that stage and I reckon there was a very small majority in favour of doing something.
We then went to a stage where we had to consider what we were going to do quite seriously and it was at that stage, I think, that it got going. We put together a book which showed you pictures of how it would be and so forth and the documents you’re going to sign for shares, different figures showing what would happen with that and so on. And we then had a system of trying to get people individually to come along and have a talk and show them these things. So we slipped on then, I reckon, to the next level where we had about 70% in favour of it. Some of the opposition was quite ridiculous. For example, one senior junior was a member of the Irish Club. He’d go down there quiet often to drink and as a result, he got this strange view that he was some sort of property expert. He said, based on what he thought the Irish Club was worth, that our site was worth at least $10 million. Well while you couldn’t get him to change his mind on that, the views he expressed caused a lot of people to say, “Look that’s a bit ridiculous”. So we found that our support got higher as a result of the stance he took and, in the end, we got about 90% in favour. Then the important thing was to show that we were doing something. At the Bar there is always talk about what we’ll do, but not much action. We’re great men for the defendant. We can find reasons why it mightn’t work; you know, the sky might fall in, all sorts of things can happen. But we overcame all of that and got moving with it. The only unfortunate thing about the whole business was that we never got enough people to go into the building next door. We could have bought that for something like $300,000, it was a real steal. But we’d expended all our energy. So we never went ahead unfortunately. If we had about a year or so living in the new building, we probably could have got that one too.
The statue, “Advocacy”, that we see in the foyer of the Inns was sculpted by Mrs Hampson. What was the story behind that?
I think it was just an idea that I introduced to the directors that we should have something significant. There was a philosophy that was around at that stage that every new building had to spend a percentage of its total cost on artworks. So I thought the best idea really would be if we got a statue made. And, of course, the directors didn’t know much about that so I said, “Look, I’ll get my wife to make a model. You can see what I’ve got in mind”. They agreed, and Catharina produced a model. The directors liked the model and what you see in the foyer is the result.
The statue is of a barrister, a man, a woman and a child. Is the barrister you?
At the time, I didn’t think it was intended by Catharina to be anybody to be honest. More recently, she disclosed that the barrister’s head was inspired by a wax-bronze bust she made of me prior to the making of ‘Advocacy’. I was completely unaware of that until then. Apparently, certain changes were made by Catharina to avoid the possibility of an exact likeness to me and she also said that the woman and child were inspired by the writings of Patrick White.
It conveys a wonderful impression of a barrister — someone who is helping others?
Yes. That’s right. I think it says a lot.
Before we leave the topic of the Inns of Court, it would be remiss of me not to seek your help to solve a mystery. After entering the lift on the ground floor of the Inns, one finds that you travel very quickly to Level 5. The reason of course is that Levels, 1, 2, 3 and 4 seem to have vanished. Can you shed any light on that?
They certainly got lost at some point, but I don’t know how they got lost. I think it was something inspired by the builders. They also had a theory that was current at the time that you shouldn’t have a Level 13 in the building either. And I said, “Won’t that be funny though?” But they didn’t think it was funny at all.
One of the theories that abounds is that, by starting the floor count at 5 instead of 1, the Inns would end up having a higher numbered top floor than the building which then housed the Bar in Sydney. In that way, so the theory goes, the Inns would be seen to be one floor higher. Could that be correct?
It might have had that effect but it wasn’t conscious. I can remember people talking about it at the time, but that’s about all. The builders gave us the floors and we just took them.
Preparation
How did you prepare for a case?
Well, these are counsels of perfection, but what I tried to do was to know every fact there was about the case. I’d know every word that was ever written or spoken about the case that could be relevant because you never knew what would come up. For instance, in a motor vehicle accident personal injuries case, there might have been a trial in the Magistrates Court for the driver of the car for driving without due care and attention. If so, I would want to summons the record and read every word of it. Sometimes you’d read the record and there’d be something that you’d find that was quite important. So you’d, in effect, try to find out everything that was connected to the case. Then in the process of doing that reading, I would write down all the facts. I used to have a system of exercise books, and I’d start off on a page and I’d write down what I thought the facts were. To continue the personal injuries case example, I would start off with the plaintiff born on such and such a day, where he went to school, his work experience, history, when he got married and all that sort of thing right up until the date of the accident. Then he’s in hospital and this happened to him or whatever. So the idea was that you ended up with a timeline of the whole thing. In the same way, I would put down how the accident happened. He was driving a car this night or whatever it was, the whole sequence of the accident – relying on this statement and the statements of other witnesses and so forth. You’d put all that down. And very often the tabulation of all those facts would be very revealing because they’d tell you something that wasn’t there. And you could go and search for that and get that right. Then you had a feeling that you had all the facts on his life along with all the facts on the accident. If there was some other thing that was important it needed to be dealt with. Supposing that the big thing in the case was that he was expected to get a promotion. If so, you might make that a little story in itself. The only other thing was that, as you read the statements of each witness, you’d write out in some convenient place any important things to get from him. For example, his statement might have been silent as to whether the lights were on, or not, so you’d put that down and get that during your conference with that witness. When you had all those things together, and patched up all the holes which were in the account of them, you were probably ready to run from the factual side of things.
What you are describing is of course simply hard work?
Oh yes, it’s a lot of hard work. There’s no doubt about it. It takes a long time to prepare something properly. But you have to remember there has to be a limit to this because you would keep going and going and going and end up with more manila folders than you could possibly cope with. So at some stage you’ve got to say, “Well, that’s enough, I’ve answered the question.” I’m not going to ask the solicitor to get in touch with the police in Perth to see whether when he was living there for two years or something, unless it’s a terribly important point. So there’s a question of judgment to be exercised as well. You have to know when enough is enough.
Work and Life
Because good preparation is a function of hard work, I expect you worked many long hours over your career?
Yes. Quite long hours. And you never really catch up. A good example of that was one Easter. I decided I’d catch up. I had opinions and various things I hadn’t done. I said to Catharina, “Well, you do something with the kids over Easter because I’m going to work every day”. So that gave me five days to catch up. And I worked damn hard. I got in at chambers at six o’clock and came home about ten at night and got it all done. I was really pleased and thought that it was a very good exercise. During the next week the opinions or whatever I had done were typed up and sent out. However I found that within a fortnight I was as far behind as I was before I started at Easter. So that’s paperwork – it’s just something you could never really ever get on top of.
Did you work much at home?
I would always try to be home in time for dinner with the family. But then I would always go away and read things like transcripts and all that sort of stuff at home. Mainly reading.
You always seem to be involved in many other things outside the law. Is it important to a barrister to have outside interests?
Well, I think its desirable. A fellow who didn’t have many outside interests was Arnold Bennett. He was interested in his profession and that was about all. He was pretty light on the other side and I think – I hesitate to use the word — but I think it probably makes you less happy. You don’t have a full enough grasp on the world to be happy about it. I think that’s what happens.
Do you think leading a more rounded life might make you a better barrister?
It’s hard to say, isn’t it? There are some awful people in the Famous British Trial series I can remember reading about, English barristers, who were terribly narrow-minded, but probably effective advocates. However they seemed to be very unattractive personalities. I just don’t know whether if you had them interested in something else whether they’d improve. You would think they should but I just don’t know.
Quality of Briefs
Did you notice any change in the quality of the briefs delivered to you over your years in practice?
Yes. One of the things that increasingly happened in my last years at the Bar was solicitors in a personal injuries case would send you up the bank statements of the client if something had happened where his earnings might be affected. They’d be of no use at all because you could easily accept the fact that he used to earn $20.00 a week or something. But they sent it nevertheless. So we got to a stage of bad briefing. So much of what some solicitors would send up was completely misconceived. On the other hand, there were always good solicitors who knew how to prepare a proper brief. A very good solicitor, particularly on the personal injuries side, was Mick Pattison. He died quite a few years ago but he was a principal of Pattison & Barry. He prepared a very good brief. He would read all the material first and then prepare the brief as a result of his reading of it. You didn’t get irrelevant documents from him. You got all the relevant documents as well as things that he didn’t have at first but had gone and searched for. You could present a case from his briefs quite well in Court. Photocopiers have led to the problem of bad briefs. Early on, if you had to copy a brief then the way it was done in those days was quite expensive. So the photocopy machine was an answer to that problem because you just could just run everything through. In the old days, the briefs were much thinner and much more helpful. People would think about what they were going to send before the brief was compiled.
Judicial Appointment
Despite a long and phenomenally successful career, you never accepted judicial appointment. Why not?
Well, for one thing, a number of people who were appointed to the bench had in fact been pupils of mine and I didn’t sort of feel like coming in and, well, standing in line. So, that was certainly a thought. And I’d say that it’s also a very difficult life being a judge because of the fact that you’re in that line. You’re circumscribed in so many ways as to what you can or cannot do. You shouldn’t go to a bar or you shouldn’t do this or that. That wasn’t really for me. I also got immense satisfaction in helping people and I think there is sort of less scope to do that as a judge. So all told, an appointment wasn’t terribly appealing to me personally. You have to remember there are quite a number of problems with being a judge. You’re supposed to make a judgment and decide for A or B. Now that’s probably straightforward enough, but there’s a lot of things you’ve got to get over to do that fairly. You’ve got to get over the prejudice you might have for or against one party or another because one presents better or whatever. You’ve got to get over that. And then you might have to do a written judgment. So, you enter into another problem then because that’s going to be there for everybody to read. So unless you want people to laugh at you and say you’re a bit of a fool you’ve got to try hard to make that read quite well. Remember it’s not a majority of people who can write well on the law. There are also different ways of writing. For example, when I started writing novels and got published, I noticed quite early on in the piece that I developed a system of writing which I might call legalese which is the way that lawyers write. When I was a barrister I was trying to cover all points which is absolutely boring for anybody else to read, so I had to break all that up and try for a different style of writing. So I quite deliberately changed my style of writing because otherwise no-one would have read it. But I don’t really believe a lot of judges appreciate that. I think some of them believe that they’re good writers despite all this legalese they’re writing.
Is a good judgment a short judgment?
As long as you make the necessary points in it. And that in itself raises the question again of your discretion as to what the points should be. But it should be a short judgment consistent with covering the points. Now there are a lot of judges who think they’re going to write themselves into immortality by spending pages and pages going on about one point or another. Unless you’ve got a good writing style to keep the people’s interest up, they won’t read it. They’ll just go right to the end and see which way you’ve decided. That’s all they’re interested in. Even though, when you wrote it, you thought it was going to be fascinating.
All right, let’s turn to judicial appointments generally. The system for appointments remained largely unchanged throughout your whole career. Does it work well or do you think there is a case for an independent body to make appointments in preference to the Executive?
I don’t think an independent commission should make the appointments but I don’t suppose there is any harm in having an independent commission which approves people. In other words, to say whether someone is qualified or suitable or otherwise fulfils criteria.
That would get rid of some of the real rat-bagging in appointments; if you had some standard introduced. Because I think it is quite clear that the politicians have got no idea of what the standard is. They’ve got no idea really of whether a person is good or not good. When I was President of the Bar Association on several occasions I can remember the Attorney-General didn’t have any idea who to appoint. He’d ask the senior officers in his Department and they wouldn’t be too sure either. He would then ask me in my capacity as President and my practice was to give two names. I’d say, “A or B”. And both would be quite good. I would do that after I had rung A and B and said, “Would you take the appointment if you were offered it”. And in every case in my time the Attorney-General appointed one of the two I nominated. But maybe some sort of body to vet the applicants is needed particularly these days where there seems to be so many appointments in all sorts of courts and tribunals. It didn’t matter so much years ago.
How many judges were sitting when you started at the Bar?
I think there were about eleven Supreme Court judges. No District Court judges. Just Supreme Court judges and the Magistracy, practically none of whom that I can remember were legally qualified. When the District Court commenced, it took Grant-Taylor and Andrews. At a later stage it took Reginald Carter. So there were two original appointments and then Carter came along a little later so you had three and they went along for some time with that until they started to appoint more.
Motivation and the Decision to Retire
Over a career of almost 50 years as a barrister and, for most of those years as leader of the Bar, how did you maintain your motivation?
Well, I wonder that a bit myself because when I gave it up and started to look at myself over the last couple of years, I thought well, my performance might be falling off, you know, and it probably was. But I wasn’t really conscious of it. Then I asked the very question, had I had enough? Because I thought if I had had enough of it you would fall off in performance. I had just got to that stage of thinking when I had a couple of significant operations that seemed divinely inspired to put me out of business. The first operation was for an aneurism growing in the abdominal aorta and the medical textbooks said if that if it grew to a certain size they should operate because it could break at any time. The doctor said, well, you know, “You can please yourself whether you have it or not but, if it did break and you are a long way from hospital, you’d be in trouble because there’d be a lot of bleeding.” So he put it to me that it was sort of six that I should have it and four that I shouldn’t. So I had that one and it was a pretty massive operation, so I was off for a while with that. I was still going into chambers but I wasn’t doing the work that I did up to that time. And then I had the next operation because my doctor maintained that I had a stroke. I thought he was being a bit hysterical to tell you the truth, but he reckons he found a little clot. I don’t know whether that was right or not to be honest, but that required another operation although not as bad as the first one. And it was about at that stage I was starting to think well, you know, what’s the point of really keeping on with this if in fact the doctor’s right? Maybe I’ll have another stroke, and the only way you can tell whether you’re going to have another one or not is just to live and see whether it happens. Anyway, I haven’t had another one.
Do you miss practice?
I don’t really think so, no. I think it’s a young man’s game and I think if one is completely honest one should really say that. When you start at the Bar it’s exciting and all that kind of thing. There’s a fight for work, there’s a fight to get ahead and that continues as you get successful. You’re sort of at the top of the tree and you’re still kind of fighting to preserve yourself up there. To some extent motivation also depends on the type of cases you might be involved in at the time. Some cases you can’t wait to get your hands on. Others seem less so. So you’ve got to give yourself a kick in the bum with those. However, when you get to about 60 the old body’s not what it once was and it’s getting a bit harder. You don’t see that at the time but looking back, I can see that was the way it was going.
The Future of the Bar
Is there a future for the Bar?
I don’t know. There is so much messing around with it, I’m afraid that you just don’t know where it is. I think the future is a little uncertain. I look at that fellow who writes for the Australian. He writes about judges – they’ll get a mention – and solicitors and big firms but barristers, I don’t recall them being mentioned much at all. I only mention that so as to indicate that you don’t get much publicity any longer whereas many years ago they couldn’t write such an article unless you had Barwick in it and all that sort of thing.
A number of lectures were given a couple of years ago for the New South Wales Bar Association that are collected in a book entitled, “Rediscovering Rhetoric”. Justices McHugh and Kirby gave two of those lectures and used them to debate whether there had been a “decline in the barrister class”. McHugh was for that notion and Kirby, perhaps not surprisingly, disagreed. Kirby argued that, in years gone by, big cases attracted a great deal of interest from the public. They were closely followed by the press and reported intensely. He maintained that court cases were a form of entertainment whereas now, there are different calls on our time and more instantaneous or attractive forms of entertainment. Do you have a view about that?
Probably untrue. It’s a bit like cases in England. There was a time in England where murder cases were the extreme amusement of English people and you had lots of barristers who were quite famous because of the murder cases. Now I suspect that doesn’t happen any longer and that’s partly s a question of how well it’s written, how much time they put into it and all that sort of thing. Because you’ve certainly still got the murders and, at times, there’s great interest in them but I suspect that’s what’s happened. I suspect the same thing here too, that you don’t have the blokes who could write the way they used to. For instance, I used to go up to the Maryborough Magistrates Court – that’s a long time ago now. There was a solicitor up there, Sheldon, who used to brief me quite a bit, and also Gerald Pattison in Brisbane. He had a house up there. So I used to go to Maryborough quite a bit back then. So, in the earliest days I went there, there was a reporter who worked for the local Maryborough paper and I think he syndicated a bit of his stuff down to the Courier-Mail. He was just terrific, and far better than the blokes they had down at Brisbane. He was extremely good. There was one case I can remember that was a bit out of the ordinary. It concerned a bloke who’d got injured when working at one of the factories they had there. Something came off a crane I think. Anyway, this journalist reported the case and he had it dead to rights exactly. You read the report and it was completely correct. And you have to remember that in those early days we used to accept reports like that as being law reports for the purpose of who the people were, what happened, who they were in court and so on. So if you still had journalists like that, I’m quite sure that you’d have great interest in big cases.
Memoirs
You have recently published your sixth novel, Occasions of Sin. Are there any plans afoot to publish your memoirs?
Well, (my daughter) Edith is pressing me on that because I said I’d do it and I haven’t got around to it. But I must say I’m a little bit afraid of doing too much while people are still alive. So that’s just a bit of a concern.
That presents a bit of a conundrum of course?
Yes. If I wait too long, there may be no one left to read it.
Ascot, Brisbane 3 September 2010
Photos courtesy of The Supreme Court Library.
The Federal Government intends evaluating graduate learning outcomes against academic standards.
This paper describes the work of the Learning and Teaching Academic Standards Project in Law in facilitating the development of Threshold Learning Outcomes for the Bachelor of Laws by the judiciary, the profession, regulators, educators and students.
Earlier this year, the Federal Labor Government announced the creation of a new quality and regulatory agency based on recommendations stemming from the Bradley Review of Higher Education. Before the election, the Labor government began the establishment of the Tertiary Education Quality and Standards Agency (TEQSA). Given bi-partisan support, work on the formation of TEQSA seems likely to continue with a view to having the Agency fully operational from 2012.
TEQSA is to evaluate the performance of institutions and their programs of study against a range of standards criteria. These criteria will include those set out in the Australian Qualifications Framework which is currently under revision.1 They will also be aligned with the academic standards that discipline communities nationally agree represent the core minimum or ‘Threshold Learning Outcomes’ (TLOs) for their graduates. In the case of Law, these standards will be part of determining what law students should know, understand and be able to do on graduation.
The Australian Government awarded the Australian Learning and Teaching Council (ALTC) $2 million to lead the Learning and Teaching Academic Standards (LTAS) project which involves facilitating and coordinating discipline communities’ definition of these academic standards in preparation for the creation of TEQSA. The project is driven by Discipline Scholars across a number of broad disciplinary groups. We — Sally Kift and Mark Israel — have been appointed by the ALTC as joint Discipline Scholars: Law. Together with Rachael Field as Project Officer, we started on this project in February and report to the Department of Education, Employment and Workplace Relations in December.
Of course, Law already has Standards developed for other purposes. In November 2009, the Council of Australian Law Deans (CALD) agreed a set of Standards for Australian Law Schools.2 The purpose of the CALD Standards was “to enhance the quality of Australian law schools in all of their diverse endeavours, and to do so by assisting all Australian law schools to strive for and reach a clearly articulated set of standards” (Coper, 2008). As a result of the work carried out on the CALD Standards, Law was in a relatively strong position to start the LTAS project. While the CALD Standards are all-encompassing, the LTAS work is concerned only with the ‘curriculum content’ aspect of them (at 2.3.2 and 2.3.3).
In the LTAS project, we are producing a statement of six TLOs for the Bachelor of Laws. These deal with: knowledge; ethical disposition; thinking skills; research skills; communication and collaboration; and self management. We have sought to develop TLOs that are clear, flexible and have legitimacy. They should make it possible for those responsible for the Bachelor of Laws degree to meet concurrent requirements from the Australian Government, the professional Admitting Authorities, the Council of Australian Law Deans’ proposed Law Schools Standards Committee, and from individual universities. We have also drawn on relevant developments in parallel processes in the United Kingdom (Quality Assurance Agency for Higher Education Benchmark Statements), Europe (Tuning), Latin America (Tuning) and the standards developed by the American Bar Association.3
The Role of Standards
While there are a range of reasons for the project, its value for Australian law graduates should be that they can demonstrate more easily to prospective employers inside and outside Australia that they have a particular base of knowledge, understanding and skills. It would, of course, be open to and sensible for graduates to indicate that they have additional knowledge and skills and for particular law schools to make more advanced claims about all their graduates.
The project should offer some help for law schools involved in curriculum reform projects. Standards, after all, should not mean standardisation and should not unduly restrict law schools’ autonomy nor impede their efforts to develop the curriculum for the Bachelor of Laws and innovate in terms of delivery. Several institutions have already indicated that they are using the Draft TLOs as a starting point to help map coverage of those skills and areas of knowledge across the curriculum.
Standards also have a role to play in protecting the tertiary education sector as a whole. In a 2009 discussion paper,4 the Australian Universities Quality Agency (AUQA) argued that the Standards agenda would underpin expansion in domestic and international student numbers and enhance both equity and excellence in higher education. AUQA concluded: “Higher education’s strategic importance to Australia’s economic and social prosperity makes it imperative that our institutions have robust strategies for demonstrating students’ academic achievement” (p.4).
Consultation
The Threshold Learning Outcomes are being developed through a process of consultation with law academics, regulators, professionals, judges and students across the sector. Our Expert Advisory and Discipline Reference groups include representatives from the judiciary, the Law Admissions Consultative Committee (LACC), CALD, the Australian Academy of Law (AAL), the Law Council of Australia (LCA), COAG Standing Committee on Legal Practice and Relations with the Legal Profession, Australasian Law Teachers Association (ALTA), Australian Law Students Association (ALSA), Young Lawyers Committee, and the Australasian Professional Legal Education Council (APLEC).
In June, we ran a National Forum in Melbourne for university Associate and Assistant Deans with responsibility for learning and teaching in law. Almost 40 academics attended, drawn from nearly every Australian Law School. Later that month, we met with the Law Admissions Consultative Committee in Melbourne to brief them on the project and receive feedback on an early draft. We have provided regular briefings to CALD and ALTA and are running focus groups in the Northern Territory, Queensland, and Western Australia in order to gather responses to the proposed TLOs from students and recent graduates.
How you can be involved
Over September and October, we have been conducting a process of local consultation across Australia for legal academics, interested students and members of the profession. Hubs are being or have been run in Adelaide, Brisbane, Canberra, Darwin, Gold Coast, Hobart, Melbourne, Perth, Sydney, and Wollongong. The sessions have been organised to inform the discipline community about the project, and seek feedback to support drafting of the final statement. An additional teleconference is planned for 15 October for those unable to attend a face-to-face meeting. Invitations have been distributed through Law Schools, Admitting Authorities, Law Societies, Bar Associations and Courts. Further information about venues and dates may be found on our website5 and we invite you to join us at one of these sessions.
In July, we circulated a third draft of the Standards Statement to Law Schools, Law Student Associations, Admitting Authorities, Law Societies, Bar Associations and courts in each jurisdiction and invited comment. You are welcome to be involved in providing feedback. Again, you can find both the Consultation Paper and the Feedback form on our website.
In most cases, consultations to date have ended with a broad acceptance that the discipline-based standards need not be very detailed as long as guidance on how to interpret each TLO was contained in a non-prescriptive and evolving set of Notes. These Notes will contain information about the provenance of each TLO, an exploration of the terminology used in the TLOs, and could evolve to provide examples of the TLOs’ implementation in terms of demonstrating students’ achievement. The project also aims to contribute material to a peer-reviewed repository of useful resources to provide practical assistance to discipline academics regarding standards implementation and measurement. We have started to list contributions under ‘Resources’ on our website.6 If you are aware of other useful resources, please alert Rachael Field r.field@qut.edu.au. It would be extremely helpful if you could either provide a link to the webpage (url) or a digital copy.
We remain convinced that the Academic Standards that are being developed by the discipline community are preferable to any that might be imposed from outside. The LTAS project provides a significant opportunity for legal academics, professionals, regulators and students to contribute to the creation of meaningful learning outcomes for the Bachelor of Laws. We thank all of those members of the profession and the judiciary who have already taken a keen interest in our work and invite all members to contribute if they wish.
Mark Israel is an ALTC Discipline Scholar and Winthrop Professor of Law and Criminology and Associate Dean in the School of Law at University of Western Australia. Sally Kift is an ALTC Discipline Scholar, and Professor in the Faculty of Law, Queensland University of Technology. Rachael Field is a Senior Lecturer in the Faculty of Law, Queensland University of Technology.
You can find out more about our work at http://www.altc.edu.au/standards/disciplines/law, and we can be contacted at sally.kift@altc.edu.au, mark.israel@altc.edu.au or r.field@qut.edu.au.
Mark Israel, Sally Kift and Rachael Field
Footnotes
- http://www.aqf.edu.au/Portals/0/Documents/Strengthening%20the%20AQF%20-%20Consultation%20Paper%20July%202010.pdf
- http://www.cald.asn.au/docs/CALD%20-%20standards%20project%20-%20final%20-%20adopted%2017%20November%202009.pdf
- See http://www.altc.edu.au/standards/disciplines/law/resources#precedents
- http://www.auqa.edu.au/qualityenhancement/academicstandards/
- http://www.altc.edu.au/standards/disciplines/law
- http://www.altc.edu.au/standards/disciplines/law/resources
Tributes to Lord Bingham of Cornhill have described him as the greatest judge of our time. These tributes do not rest simply on his holding the top three positions in the British legal hierarchy: Master of the Rolls, Lord Chief Justice and Senior Law Lord, something unparalleled in the modern era. They also rest on his contribution to the law and the assessment of contemporaries that he was one of the most brilliant and independent judges of his generation.
Tom Bingham was born in London in 1933, and after national service graduated with first class honours in modern history from Oxford. He topped the Bar exams, and was called to the Bar in 1959, joining chambers headed by Leslie (later Lord) Scarman. He took silk at just 38. His style of advocacy has been described as quiet and persuasive, with cool understatement, such that when he stressed a particular word or phrase, he achieved great impact.
He became a judge of the Queens Bench Division in 1980 at the age of 46. When asked why he had become a judge he said:
“I found I liked my clients less as time went on and they got richer. I got on very well with criminals in earlier days.”
After six years as a trial judge, serving in the Commercial Court, he was appointed to the Court of Appeal. Barristers describe appearing before him as an intellectual challenge. In a recent tribute, Alex Bailin QC wrote:
“It was immediate to everyone who came into contact with him that he was both a great mind as well as an exceptionally talented judge. Like the best judges, in addition to his formidable intellect he was an extremely good listener. He always commanded his court with absolute authority yet without overtly wielding the considerable power he was invested with. He was unfailingly courteous and patient. Many eminent advocates have remarked that he managed to control the hearing of case more by the careful use of tone of voice rather than any irascibility. There was a certain type of ‘yes’ which he uttered which most definitely meant ‘move along swiftly, please’. Perhaps the best moment for counsel in a hearing before him was, whether he was seemingly with or against you, when he might helpfully distill your inelegant points into an impossibly concise summary which could be gratefully adopted with alacrity. The worst moment was probably his uncanny ability to construct a devastating counter-example which Counsel had not thought of. And you often felt as though, even after the most complex of cases, given an hour or so he could have given an extempore judgment.”1
In 1992 Lord Bingham was appointed as Master of the Rolls. He was the first senior member of the English judiciary to advocate the incorporation of the European Convention on Human Rights into English law, and supported reforms of the civil justice system that are associated with his successor, Lord Woolf.
In 1996 Lord Bingham was asked by the Lord Chancellor to become Lord Chief Justice: an appointment resisted in some quarters because of his lack of criminal law experience. This promotion from Master of the Rolls was unprecedented in the modern era. During his time as Master of the Rolls, he had fewer publicised controversies with the Home Secretary than his predecessor, but fought with determination for the independent judiciary. He was critical of government plans to impose mandatory minimum sentences and end automatic remission for prisoners. He responded to media portrayals of judges as excessively lenient, and argued that judges were best placed to decide which sentence fitted the circumstances of the case. Whilst wary of the media, he was prepared to speak out on controversial issues, calling for reform of cannabis laws and for the provision of safe houses for released sex offenders. He also supported the abolition of mandatory life sentences for murder, and opposed plans to dismantle legal aid.
Unlike his predecessors as Lord Chief Justice — Lords Widgery, Lane and Taylor — who devoted most of their time to presiding over criminal appeals, Lord Bingham also sat in judicial review cases and civil appeals. To acquire fresh knowledge, he occasionally sat as a trial judge in Crown Courts. His contributions to the law included development of the law of confidence to protect individuals against invasions of privacy by the media.
The move to Senior Law Lord in 2000 was not in accordance with the practice of appointing the longest-serving member of the judicial committee of the House of Lords. His appointment coincided with the commencement of the Human Rights Act. Alex Bailin QC writes:
“Despite having had a largely commercial practice at the Bar, his legal legacy will surely be grounded in the body of human rights jurisprudence which he created from 2000 until his retirement in 2008… Although his Opinions in human rights cases were generally measured in tone, he was undeniably a passionate supporter of the Human Rights Act. In his address (when he was Lord Chief Justice) to the House of Lords during the passage of the Human Rights Bill, he famously quoted Milton’s Areopagitica in support of the proposed progressive reform: ‘Let not England forget her precedence of teaching nations how to live.’ ”
Within a year of his appointment, terrorist attacks on the World Trade Centre in New York led to the enactment anti-terrorist legislation and the detention of foreign terrorist suspects indefinitely without charge in Belmarsh prison, South-East London. The British government also supported the use of evidence that had been obtained by torture in certain legal proceedings. Challenges to these laws and practices led the Law Lords into apparent conflict with the government of the day.
Lord Bingham wrote the leading judgments in 2004 and 2005 in the two cases of A and Others v Secretary of State for the Home Department, although Lord Hoffmann’s powerful concurring judgment in the first Belmarsh case attracted more media attention. Their judgments recognized the threat posed to modern liberal democracies by terrorism, whilst subjecting government responses to that threat to the rule of law.
In A v Home Secretary2 the House of Lords held that the detention without trial of foreign nationals suspected of terrorism was disproportionate and discriminatory. Lord Bingham described how the appellant’s proportionality argument was able “to draw on the long libertarian tradition of English law, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day.”
He observed that “While any decision made by a representative democratic body must of course command respect, the degree of respect will be conditioned by the nature of the decision”, and cited La Forest J who had written in a Canadian case:
“Courts are specialists in the protection of liberty and the interpretation of legislation and are, accordingly, well placed to subject criminal justice legislation to careful scrutiny. However, courts are not specialists in the realm of policy-making, nor should they be.” 3
Reference was also made to the judgment of Jackson J in the US Supreme Court case of West Virginia State Board of Education v Barnette4, who wrote in relation to a constitutionally-entrenched Bill of Rights:
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts ….. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.”
The leading judgment of Lord Bingham in the first Belmarsh case explains the role of judges under a statutory bill of rights, and the scope for deference to decisions by a representative democratic body. In an earlier case, Simon Brown LJ had observed that:
“… judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.”5
In A v Home Secretary Lord Bingham concluded that the appellants were entitled to invite the courts to review, on proportionality grounds, the relevant order and the compatibility with the Convention of the relevant Act, and that the courts were not effectively precluded by any doctrine of deference from scrutinising these issues. He did not accept a distinction drawn in a submission by the Attorney-General between democratic institutions and the courts. Lord Bingham stated:
It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out … above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic.
Lord Steyn later characterised that as a “magisterial rebuke”.
In the second Belmarsh case6 the House of Lords rejected the admissibility of evidence tainted by torture. Lord Bingham explained the protections afforded by the British common law in addition to those provided by the European Convention on Human Rights. His masterful account of the common law concerning the admission of evidence obtained by torture starts with the simple sentence: “ It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture.” He concluded that the “principles of the common law … compel the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles that should animate a tribunal seeking to administer justice”. He dissented on the issue of the burden of proof. The majority ruled that the person wishing to challenge the admissibility of the evidence had to prove that it had been obtained by torture. Lord Bingham remarked:
“My noble and learned friend Lord Hope proposes…the following test: is it established, by means of such diligent enquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet.”7
Lord Bingham did not regard the European Convention on Human Rights as a panacea. He invoked Hamlet in a traffic case:
“Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies…. The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from ‘The heart-ache and the thousand natural shocks That flesh is heir to’”.8
In 2008 he retired, having done much to lay the foundation for the establishment of the Supreme Court. Retirement freed him to express his opinion on the legality of the Iraq war, which he described in a lecture in November 2008 as a “serious violation of international law”. His major work The Rule of Law was published in 2010. A non-smoker throughout his life, he died of lung cancer on 11 September 2010.
The Associate Editor of The Guardian, Martin Kettle, reports that Lord Bigham was amused when people assumed that Lord Bingham of Cornhill referred to the City of London rather than the tiny mid-Wales hamlet where he spent as much time as he could. No other senior judge in modern times has been made a Knight of the Garter. Lord Bingham hung the framed citation outside the bathroom door of the Welsh home in which he died.
The Director of Liberty, Shami Chakrabarti, wrote:
“As long as people anywhere fight torture and slavery; treasure free speech, fair trials, personal privacy and liberty itself — Lord Bingham will be remembered.”
Justice Peter Applegarth
Other Tributes:
Louis Blom-Cooper QC wrote in The Guardian:
“It is no exaggeration to say that Tom Bingham was the greatest judge of our time — arguably, the most significant judicial figure among the long line of notables in the history of the Anglo-Saxon legal systems. It is not just that his judicial output during an outstanding first decade of the 21st century (and the crucial last decade of the judicial House of Lords) will undoubtedly prove to be of lasting value. Over two decades — uniquely in succession as master of the rolls, lord chief justice and senior law lord — he fashioned a modern jurisprudence and displayed a juristic talent both in and out of the courtroom. He was par excellence a jurist, displaying a philosophical basis to his judgments and extra-judicial writings. His book The Rule of Law was a hugely important exposition of a phrase much overused in legal language, but little understood beyond its professional and constitutional rhetoric.
As a judge, Tom exhibited modestly an outstanding intellect, always courteously quick-witted in courtroom dialogue, as well as sure-footed in judgment, elegantly expressed, often tinged with apt historical analysis and rooted in irrefutable ratiocination. Everything he did and said was magisterial. He had all the judicial qualities and judicial mien, wholly in accordance with the highest standards of judicial service and attuned to the social and political demands made upon judges and lawyers in a civilised democracy.
Henry Porter wrote in the same publication:
He was among the first big names to agree to speak at the Convention on Modern Liberty in 2009, where he said: “The possession of great powers by the state is not a reason for using them — rather (it) should prompt a principled determination to ensure that the permissible exercise of such powers is strictly defined, regulated and monitored so as to guarantee that any intrusion into liberty and privacy of the individual is fully justified by an obviously superior community interest.” He was concerned that with the “war on terror”, government ministers were in danger of losing a basic respect for the idea that liberty is Britain’s “direct end and foundation”; and this fear inspired his important study, The Rule of Law. Tom was a great man whose humanity was as much evident in his good manners and treatment of his opponents as it is in the huge body of important judgments. But this respectfulness never inhibited a wonderfully elegant mind, and few of those who saw him argue about a written constitution with a famous television historian over dinner at Hay will forget him leaning back in his chair and engaging that terrifying mental agility. It was like watching an expert knife thrower. He will be greatly missed, for he held the line on the most important principles of law at a critical moment in our history.
Footnotes
-
- [2005] 2 AC 68; http://www.bailii.org/uk/cases/UKHL/2004/56.html
- RJR- MacDonald Inc v Attorney General of Canada [1995] 3 SCR 199, para 68
- 319 US 624 (1943), para 3
- International Transport Roth GmbH v Secretary of State for the Home Department
- A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221; http://www.bailii.org/uk/cases/UKHL/2005/71.html
- Ibid, at [59] (emphasis added)
- Brown v Stott [2001] 2 WLR 817, 835; http://www.bailii.org/uk/cases/UKPC/2000/D3.html
Settled Principles
His Honour held that the following propositions emerge from the decision of the Full Federal Court in Poletti v Commissioner of Taxation,4 in relation to this type of appeal:5
(a) the appeal is not a hearing de novo, which means that there is no retrial of all the issues and what the Commissioner considered and did in making the DPO decision is not (ir)relevant (sic) (at 160);
(b) neither is an appeal against the making of a DPO confined to a question of law in the way in which is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (at 160);
(c) nor is the appeal one confined to administrative law error grounds in a way in which would be a challenge under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 160);
(d) administrative law error grounds or a question of law may nonetheless permissibly be advanced on an appeal which, to this extent, overlaps with a judicial review proceeding (at 160);
(e) it is for an appellant to make good the challenge; no onus of proof lies on the Commissioner (at 160-161);
(f) the documentary material before the Commissioner at the time when the decision was made should be produced by him to the Court (at 161);
(g) other material then in existence, be it on the Commissioner’s files or otherwise, is relevant and can be produced to the Court to enable the Court to decide whether the belief of the Commissioner was held on reasonable grounds (at 162);
(h) material which comes to light after the making of the DPO decision and which did not exist at that time is of doubtful relevance (at 162).
His Honour accepted, following Poletti, that there were three principal questions to be resolved on the appeal:
(a) Whether the person is subject to a tax liability?;
(b) Whether the Commissioner held the belief of which s 14S(1)(b) speaks?; and
(c) Whether reasonable grounds existed for the formation by the Commission of the requisite belief?
His Honour rejected a submission on behalf of the Appellant that there were two stages to an appeal under s 14V 6.
Findings by Logan J
His Honour accepted Pattenden was subject to a tax liability but found there was a discrepancy between the office minute and the DPO issued on 21 May 2008 by the delegate of the Commissioner.7 His Honour rejected as “unattractive”8 a submission on behalf of the Commissioner that, in a relative sense, the discrepancies were “minor” because, “notwithstanding that the nature of the power to make a DPO admits of the application of the Carltona principle, it nonetheless remains a power that entails a serious intrusion on a person’s freedom of movement”.
There was therefore every reason to expect that the “non-procedural aspects of the decision” will be made only by the authorised officer and the decision to insert a different taxation liability was that of an unauthorised subordinate. His Honour held that inserting the additional taxation liability and the further payments was not a “procedural step”. Neither was the affixing of the facsimile of the Deputy Commissioner’s signature to a DPO in that form9. His Honour considered the additional entries were not severable10.
His Honour rejected a submission that the use of the words “I support your recommendation to seek a DPO” evidenced an endorsement of an approval decision made by an unauthorised subordinate as opposed to evidencing the making of a decision in terms of the subordinate’s recommendation11.
His Honour was critical of the fact it took over a month after deciding a DPO should be made before the DPO was issued and observed that the delay was not explained in evidence. His Honour considered the word “forthwith” in s 14S(4) meant “as soon as reasonably practicable”. He was not satisfied that had occurred in this case12.
His Honour concluded:
“The purported DPO of 21 May 2008 did not reflect the decision made by Mr Benson on behalf the delegate. It reflected the decision of persons not authorised to make a DPO in the name of Ms Vivian. Even if for no other reason, it should be set aside”.13
As to the requisite belief, whilst his Honour concluded “it is by no means impossible to see how it was open for the requisite belief to be held on reasonable grounds not just subjectively but objectively”, his Honour found that, on the evidence before the Court as to the position at the time that DPO was made, the factors to which he had adverted did not warrant a conclusion that reasonable grounds for the requisite belief existed14 because there had been a material change to the “taxation liability,” as set out in the schedule to the DPO, from that which was the subject of advice to Mr Benson. For that alternative reason also the DPO was set aside.
His Honour rejected the submission of the Appellant that the existence of an undetermined objection was a relevant consideration which the Commissioner was bound to take into account in the exercise of his discretion whether or not to issue a DPO, and that the Court should also take that matter into account in the exercise its discretion whether or not to grant relief on appeal. His Honour also rejected the submission that the Commissioner was bound to take into account the Commissioner’s Receivables Policy and that any omission so to do gave rise to an administrative law error15.
In reaching his findings, his Honour stated, “as it happens, I have answered two of the three questions described in Poletti’s case favourably to Mr Pattenden. I did not understand the Commissioner to submit that, if so, I retained a discretion to preserve the DPO”.16 In fact, submissions were made on behalf of the Commissioner that, even if one or more of the questions posed in Poletti’s case were answered favourably to Pattenden, in the exercise of its discretion, the Court could take into account facts which had arisen after the decision to make the DPO which were relevant to the exercise of the discretion whether or not to grant relief and decline to grant relief where that evidence led to a conclusion the DPO should not be set aside, notwithstanding defects in the making of the DPO.
In that regard, his Honour was referred to admissions made by Pattenden, in his evidence, that, although returns had been lodged on behalf of Crown Insurance for each of the years ended 30 June 2003, 2004, 2005 and 2006 and the tax assessed on the deemed assessment arising by lodgment of those returns had been paid,17 Mr Pattenden had instructed his solicitors to lodge objections against those deemed assessments with a view to recovering the monies paid, and did not believe that either he personally, or Crown Insurance, had any taxation liability with respect to any of the years in question, and that he had no intention of paying any tax with respect to any of those years. His Honour did not refer to these submissions in his reasons.
Is the Decision in Pattenden correct?
In my respectful opinion the decision of Logan J that the language of s 14S of the TAA 53 does not compel a conclusion that a DPO may only be made after consideration of the total taxation liability, however arising, of an individual is correct. No intention which would displace the interpretative rule found in s 23(b) of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) that “words in the singular number include plural and words in the plural number include the singular” is evident.
Further, his Honour correctly observed that s 14S contemplates the making of a decision to issue a DPO by the Commissioner or a delegate who has formed the belief, on reasonable grounds, that it is desirable that a person, subject to a particular tax liability, not depart Australia without “wholly discharging” that tax liability; or making arrangements satisfactory to the Commissioner for that tax liability to be “wholly discharged”. The value judgment entailed in the decision is necessarily referable to “wholly discharging” or making satisfactory arrangements for “wholly discharging” the taxation liability in respect of which the decision is made.
These were the considerations which led his Honour to the conclusion that it would be a “usurpation” of the authority vested in Mr Benson to make a DPO for Mr Benson’s unauthorised subordinate to presume to insert into what purported to be a DPO, made by or on behalf of Mr Benson, a tax liability that was different to that in respect of which the authorised officer had made his decision on behalf of the Delegate18.
His Honour accepted that it was proper for an authorised person, having made a decision to issue a DPO, to consign to a subordinate “consequential, wholly procedural, clerical or ministerial” tasks such as the affixing of a facsimile signature of the Deputy Commissioner to the DPO, or communication to Pattenden of the making of the DPO. However, his Honour held the changes made to the taxation liability set out in the schedule to the DPO from the amounts referred to in the office minute were not “wholly procedural, clerical or ministerial” changes, but more properly characterised as “non-procedural changes”, i.e. changes of a substantive nature.
His Honour’s decision in relation to this aspect of the matter is open to some question for the following reasons:
(a) There will inevitably be differences between the amount specified in office minutes submitted to authorised officers for the purposes of the making of a DPO and the amounts included in the schedule to a DPO by reason of the potential inclusion of general interest charge in the calculations, and by reason of payments being received, credits being allowed and, on occasion, further assessments issuing. His Honour accepted, for example, that the amount set out in the DPO would inevitably be different to the amount referred to in submissions to an authorised delegate or to a delegate’s authorised officer because the general interest charge would result in the amount of the debt changing on a daily basis;
(b) The authorised delegate, or the authorised officer, in making a DPO under s 14S(1), is recognising that a person has a taxation liability, and forming a belief, which must be formed on reasonable grounds, that it is desirable for the purpose of ensuring that that person does not depart from Australia for a foreign country without wholly discharging the tax liability, or making arrangements satisfactory to Commissioner for the tax liability to be wholly discharged, to issue a DPO in the prescribed form, prohibiting the departure of that person from Australia for a foreign country;
(c) Provided that a taxation liability exists at the time of the making of the decision pursuant to s 14S(1), and that taxation liability has not been “wholly discharged,” and no satisfactory arrangements have been made for that tax liability to be wholly discharged, the relevant decision-maker has authority, pursuant to s 14S(1), to issue a DPO in the prescribed form;
(d) The fact there might be some discrepancies or differences between the amount of the tax liability existing at the precise moment when the decision is made, and at the time when the DPO was issued would not, in and of itself, result in the DPO being invalidated by reason of that discrepancy,19 provided the discrepancies or differences between the amounts specified in the office minute requesting the making of a DPO, and the amount set out in the schedule to the DPO, are not sufficiently substantial to be likely to result in a different decision being reached by the authorised officer.
Reasonable Grounds at the Time to make the DPO was Made
Logan J preferred the approach exemplified in George v Rockett20. Logan J held that whether reasonable grounds existed for the holding of the requisite belief was “an objectively determined postulate”21.
In George, the High Court stated the relevant law as follows:
“When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, for example, Attorney-General v. Reynolds [1980] AC 637. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant that reasonable grounds for the relevant suspicion and belief exist”.22
A similar approach was adopted in Ruddock & Ors v Taylor23, where the High Court held that what constituted reasonable grounds for suspicion had to be judged against what was known or reasonably capable of being known at the relevant time.
A different approach was adopted by the High Court in McKinnon v Secretary Department of Treasury24 in relation to the proper construction of s 58(5) of the Freedom of Information Act 1982 (Cth). Hayne J held that the Tribunal’s task on such an application was to decide whether the conclusion expressed in the Minister’s certificate can be supported by logical arguments that, taken together, are reasonably open to be adopted and that, if adopted, would support the conclusion expressed in the certificate. Callinan and Heydon JJ held that if one reasonable ground exists to support a claim of contrary to the public interest, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review25.
In a joint dissenting opinion, the Chief Justice and Kirby J26 said:
“[10] . . . The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds27.
[11] To decide whether it was reasonably open to a decision-maker, on the evidence, to make a judgment such as a decision whether a person was (or was not) negligent, or whether the known facts are sufficient to induce in a reasonable personal a suspicion or belief that someone is guilty of a crime, or whether there are reasonable grounds for a claim that a course of action (such as disclosure of a document) would be contrary to public interest, involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question. A judgment as to whether information or argument bears rationally upon a question is also a familiar exercise. It is usually discussed by Courts under the rubric of relevance. If a piece of information, or opinion, or an argument, can have no rational bearing upon a question to decision, it is irrelevant, and must be left out of further consideration. Otherwise, being relevant, just decision-making requires that it be taken into account.
[12] Where a claim, or an argument, or a conclusion or some other state of mind (such a suspicion, or belief, or satisfaction) involves an interplay of observation (of objective facts and circumstances), opinion, and judgment (which may involve an evaluation of matters such as reasonableness of conduct, or of the public interest), the question whether they are reasonable grounds that such a claim, or argument, or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument, or state of mind having regard to all relevant considerations. . . ”.
Under the TAA, the Commissioner is required to form the relevant belief referred to in s 14S(1)(b) “on reasonable grounds”. The “reasonable grounds” which will be relevant to the formation of the relevant belief are not stated anywhere in Part IVA, and the Commissioner is given a wide discretion to decide what factual material available to him ought to be regarded as relevant and what weight should be given to each relevant fact28. The matters which would be relevant must be ascertained having regard to the proper construction of the relevant section, in the context of the part of the TAA in which it appears, and having regard to the subject-matter, scope and purpose of the relevant provision29.
The Court does not have the power, on an appeal, to exercise the discretion reposed in the Commissioner in s 14S(1) of the TAA30. The Court may, on an appeal, in the exercise of its discretion, make an order setting aside the DPO, or dismiss the appeal31. The grounds upon which the Court might set aside the DPO are not stated in Part IVA but would include where the Applicant was able to demonstrate, by admissible evidence, that insufficient grounds in fact existed to enliven a valid exercise of the discretion referred to in s 14S(1)(b) of the TAA. In other words, no decision-maker, properly instructing themselves as to the relevant facts in existence at the time the decision was made, and properly instructing themselves as to the law, could have made the decision which is the subject of the appeal.
Such a review has some similarity to the task confronting an Applicant in demonstrating unreasonableness, in the Wednesbury sense32. In Minister for Immigration v Eshetu33, Gummow J said34:
“[137] …where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way”.
The evidence in Pattenden was not all one way. Whilst a number of factual errors had been made in the office minute, no individual error was critical in accordance with the validity of the decision ultimately made, and the question was whether there was enough uncontroversial factual material to justify the formation of the relevant belief “on reasonable grounds”. His Honour held that there was not and that, viewed objectively, the facts which existed at the date of the decision did not “warrant a conclusion that reasonable grounds for the requisite belief then existed”.35
His Honour did not deal with the question of whether there was any residual discretion to refuse relief under s 14X of the TAA 53. There would not, in practice, be many occasions, if any, where the court would not set aside a DPO when the court had concluded that reasonable grounds did not exist for the requisite belief, in my view.36
Judicial Review Grounds
In Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)37 (“the Kirk case”), the High Court gave consideration to its earlier decision in Craig v South Australia38.
In Kirk39 the plurality observed that it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error. However, their Honours referred to the collection of authorities prepared by Professor Aronson in “Jurisdictional Error Without the Tears”40. According to Professor Aronsen the following categories of jurisdictional error have been recognised:
(a) Mistaken assertion or denial of the very existence of jurisdiction;
(b) A misapprehension or disregard of the nature or limits of the decision-maker’s functions or powers;
(c) Acting wholly or partly outside the general area of the decision-maker’s jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances;
(d) Acting on a mistaken assumption or opinion as to the existence of a certain event, occurrence or fact … or other requirement, when the Act makes the validity of the decision-maker’s acts contingent on the actual or objective existence of those things, rather than on the decision-maker’s objective opinion;
(e) Disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act’s requirements constitute pre-conditions to the validity of the decision-maker’s act or decision …;
(f) Misconstruing the decision-maker’s Act … in such a way as to misconceive the nature of the function being performed or the extent of the decision-maker’s powers;
(g) Acting in bad faith;
(h) A breach of natural justice.
At [72], the plurality considered a number of propositions which emerged from their earlier decision in Craig.
First, in Craig the Court stated,41 as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.
Second, the Court pointed out42 that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”.
Third, the Court amplified43 what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples:
(a) The absence of a jurisdictional fact;
(b) Disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c) Misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.
The line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern in some cases.44
At [73], in Kirk the plurality said:
“As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that — examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.”
Indeed, there has been a further recent development in relation to the scope of jurisdictional error. In Minister for Immigration and Citizenship v SZMDS45 the High Court dealt with the development and scope of “illogicality” and “irrationality” as a separate ground of review for jurisdictional error in relation to the reasons for decision of an administrative decision-maker. Usually this arises in circumstances where a public officer must be “satisfied” of some fact or circumstance.
The High Court has observed, on a number of occasions, with reference to s 75(v) of the Constitution in relation to jurisdictional error, that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.46
At [130] in the joint judgment of Justices Crennan and Bell their Honours said:
“In the context of the Tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision-maker could arrive on the same evidence. In other words, accepting for the sake of argument, that an allegation if illogicality or irrationality provides some distinct basis for seeking judicial review of the decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”47
AVENUES OF REVIEW
In summary, the avenues of review available are as follows:
(a) Decision to issue DPO — appeal to Federal Court of Australia or Supreme Court of a State or Territory pursuant to s 14V TAA 53; application for relief under Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”); application for relief under s 39B Judiciary Act 1903 (Cth) (“JA”). The court hearing the appeal may, in its discretion, make an order setting aside the DPO or dismiss the appeal. There is a further right of appeal to the Full Court of the Federal Court and, by special leave, to the High Court;48
(b) Decision to refuse to revoke and decision to vary or not vary DPO. Review by the Administrative Appeals Tribunal (“AAT”) on the merits49. Possibly application for relief under ADJR Act and/or JA but court would probably exercise its discretion to dismiss because merits review is available in the AAT;
(c) Decision to refuse to issue Departure Authorisation Certificate under s 14U. Review on the merits in the AAT under s 14Y. Possibly application for relief under ADJR Act and/or JA but court would probably exercise its discretion to dismiss because merits review is available in the AAT.
Alternative-Judicial Review
The right to seek judicial review of all of the abovementioned decisions is subject to the limitations which arise upon tender of a duly certified notice of assessment or amended assessment, having regard to ss 175 and 177 of the Income Tax Assessment Act 1936 (“the ITAA 36”).50
As the Full Court of the Federal Court observed in Poletti51:
“The person against whom a departure prohibition order is made, has available to him, as an alternative avenue of review, an application under the ADJR Act to this Court to review the Commissioner’s decision which led to the order being made. The ‘right of appeal’ under s 14V to the court and to State and Territory Supreme Courts against the making of the order by the Commissioner under s 14S is different from a right to apply under the ADJR Act for review by this court of the decision which led to the order, especially as the latter expressly has been preserved by the Parliament.”
GROUNDS OF REVIEW
In Pattenden Logan J said52:
“Administrative law error grounds or a question of law may nonetheless permissibly be advanced on an appeal which, to this extent, overlaps with a judicial review proceeding.”
There is no particular reason why a person seeking to review a decision of the Commissioner to issue a DPO should not proceed by way of an appeal under s 14V of the TAA 53 and, in the alternative, an ADJR application and an application for review under s 39B of the Judiciary Act 1903 (Cth) (“the JA”).
The available grounds of review appear to be quite broad and may now include an argument that the decision to issue the DPO is vitiated by the illogicality and/or irrationality of the reasons of the decision-maker. Although not every lapse in logic will give rise to jurisdictional error, there are some cases where this ground might well succeed.
CONCLUDING REMARKS
Not surprisingly, the Commissioner rarely issues DPOs in my experience. It is a fairly draconian power and one which should be exercised with an appropriate degree of caution and consideration for the likely effects which the issue of a DPO will have on the recipient thereof.
Similar powers do exist in other circumstances. For example, Supreme Courts have a power to issue, on application of a creditor, an order restraining the departure of an absconding debtor in certain circumstances.53 The movements of bankrupts can also be restrained under various provisions of the Bankruptcy Act 1966 (Cth).
Notwithstanding those powers, the power of a public official to issue an order restraining the departure from Australia of a tax debtor, who may well dispute their indebtedness and not have had the opportunity to test the correctness of the Commissioner’s assessment through the objection and appeal procedure referred to in Part IVC of the TAA 53, might fairly be regarded as an exceptional power, the exercise of which should be, and is, the subject of appropriate judicial oversight.
Taxation officers who have overstepped the mark have been the subject of stringent judicial criticism. In Pattenden a further attempt was made by the ATO to restrain Mr Pattenden’s departure after the decision and reasons of Logan J had been handed down. His Honour indicated that contempt proceedings against the officers in question would have been in order if that DPO had not been revoked prior to the matter coming back on before him.
In some ways it is a pity that Mr Hogan did not see fit to challenge the Commissioner’s decision to issue the DPO by way of one of the several mechanisms referred to herein. So doing might well have advanced the jurisprudence in this area. It is, however, entirely understandable that he preferred to reach an accommodation with the ATO that allowed him to depart without the inevitable delay associated with an appeal and/or judicial review proceedings.
Having said that, in my experience, the courts are prepared to deal with these matters most expeditiously, if the circumstances warrant it.54
Peter Bickford
Footnotes
- See Pattenden v Commissioner of Taxation (Cth) (2008) 175 FCR 1.
- Section 14R(1) does not apply if the departure is authorised by departure authorisation certificate which can be issued pursuant to s 14U (see s 14R(2)).
- See s 14Y(1) TAA53.
- (1994) 52 FCR 154.
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [8].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [10] — [12].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [13]-[14].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [51].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [52].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [55].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [31] — [32].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [38].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [56].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [108] — [109].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [114] — [118].
- Pattenden v Commissioner of Taxation (2008) 175 FCR 1 at [112].
- Albeit after the making of the DPO.
- His Honour made it clear that he was referring only to primary or additional tax liabilities which are fixed, not to general interest charges which necessarily accrued from day to day; see reasons [49].
- This seems to have been accepted by his Honour at [48] of his reasons.
- (1990) 170 CLR 104 at 112 in relation to this question.
- See Polletti’s case at p 161.
- George at 112.
- (2005) 222 CLR 612.
- (2006) 228 CLR 423.
- Gleeson CJ and Kirby J gave a joint dissenting opinion.
- McKinnon at [10] and [11].
- See Bradley v The Commonwealth (1973) 128 CLR 557, at 574-575; Nakkuda Ali v MF De S Jaryaratne [1951] AC 66; Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952.
- Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24, at 39-41, per Mason J.
- Peko-Wallsend (supra).
- See ss 14V(2)(a)-14X TAA; and Chapter III of the Constitution.
- See s 14X TAA.
- See Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
- (1999) 197 CLR 611.
- At [137].
- See Pattenden at [108].
- See Pattenden at [115].
- (2009) 239 CLR 531.
- (1995) 184 CLR 163 at 176 to 180, [66] to [70] in the judgment of the plurality.
- At [71].
- Groves and Lee, Editors, Australian Administrative Law: Fundamentals, Principles and Doctrines, (2007) 330 at 335 to 336.
- (1995) 184 CLR 163, at 177.
- (1995) 184 CLR 163, at 177.
- (1995) 184 CLR 163, at 177 to 178.
- See Craig, at 178, and the cases referred to therein.
- (2010) 84 ALJR 369.
- See Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at 1127 [15] and fn16; Kruger v The Commonwealth (1997) 190 CLR 1, at [36], per Brennan CJ; [2010] 84 ALJR 369 per Crennan and Bell JJ.
- Gummow ACJ and Kiefel J gave a separate joint dissenting judgment. Their Honours analysed jurisdictional error, at [16] to [31], and the importance of proper reasons, at [32] to [36].
- See s 14W.
- See s 14Y TAA 53.
- See Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146.
- Supra at p 160; see also observations of Logan J in Pattenden at [8].
- At [8(d)] of his Honour’s Reasons.
- See, e.g., Rule 935 Uniform Civil Procedure Rules 1999 (Qld); the modern equivalent of the old writ of capias ad respondendum.
- See, e.g., Poletti where the Delegate of the Deputy Commissioner of Taxation issued the DPO on 10 August 1994; the appellant appealed against the making of the order; the appeal was heard by Beazley J and dismissed; and the appellant appealed to the Full Court which was convened to hear the appeal on 16 August 1994 and handed down its decision on 8 September 1994.
Foreword
I presented this paper to the Bar Association as part of its CPD program on 4 August 2010. When I initially agreed to present the paper I was unaware of the proposed amendments to PAMDA which now make some aspects of this paper of only academic interest.
I have also updated some of the authorities which were reserved and since the presentation of the paper have been decided.
Introduction
The Property Agents and Motor Dealers Act 2000 (PAMDA) was introduced to, inter alia, protect consumers against undesirable practices associated with the promotion of residential property1. The purpose of this paper is to consider the provisions of that Act in relation to residential property sales and examine the extent to which the requirements thereof (and other similar legislation) can be waived by a buyer.
The legislation
In relation to residential property sales PAMDA has as one of its purposes:
“To require all proposed relevant contracts or relevant contracts for the sale of residential property in Queensland to include consumer protection information, including a statement that a relevant contract is subject to a cooling-off period”.2
PAMDA requires that a contract for the sale of residential property (referred to in the legislation as a relevant contract) must have attached to it a warning statement as the first document (there are variants to this depending on whether the contract is faxed, sent by electronic communication or delivered by hand)3; that the buyer’s attention be drawn to the statement, the statement must contain specified relevant information in particular that there is a cooling-off period4 and if there is a failure to comply with these and other requirements the buyer may terminate the contract at any time up to the date of settlement5.
To complicate matters further the parties are not bound by a relevant contract (notwithstanding the execution thereof including the warning statement) until the buyer receives the warning statement and contract as signed by the parties, in the order prescribed by the legislation and with his or her attention drawn to the warning statement (again). The buyer can withdraw the “offer” to at any time before he or she is bound by the contract.
Proposed amendments to the legislation
Not surprisingly such stringent (and somewhat impractical) requirements have allowed “speculators” (as opposed to consumers) to avoid the consequences of residential property contracts for highly technical reasons when no material detriment has been suffered and in some circumstances years after the contract was entered into. As a consequence there is currently a Bill before the Queensland Parliament to substantially amend PAMDA.
Whilst a warning statement must still be attached to a contract the technical requirements of how the warning statement is attached have been removed. A buyer retains the right to terminate a contract in the absence of a clear statement alerting the buyer to the warning statement. However a buyer’s attention will be deemed to have been drawn to the warning statement if such statement is signed by the buyer prior to signing the contract. A contract can only be terminated for breach of a warning statement requirement but only within 90 days after the contract has been entered into or settlement whichever is earlier.
The definition of “attached” has also been changed such that there is compliance with the Act if the warning statement is attached in a secured way so that the relevant contract and the warning statement appear to be a single document. Examples are given whereby the warning statement and the relevant contract are either bound or stapled together. The requirement to sign new warning statements if a counter-offer is made has also been removed.
The existing s.365 which sets out when parties are bound under a relevant contract has been removed. It would therefore appear that the common law in relation to when parties become bound or contract for the sale of land now apply.
As a consequence many of the authorities referred to in this paper will only be of academic consideration in so far as contracts for the sale of residential property in Queensland are terminated after the amendments come into effect which is expected on 30 October 2010.
Other similar legislation
The Body Corporate and Community Management Act 1997 (BCCMA), the Land Sales Act 1984 (LSA) and the Environmental Protection Act 1994 (EPA) also provide elements of consumer protection in relation to the sale of land. There is significant overlap between the LSA and the BCCMA with respect to disclosure requirements in relation to the sale of proposed allotments sold “off the plan”. Disclosure under one Act constitutes disclosure under the other although the information provided can be different.
Under the LSA the emphasis is on providing the buyer with sufficient information so the proposed allotment can be identified. Under the BCCMA the emphasis is on providing information relating to the proposed body corporate, annual contributions to the body corporate, letting details, management details and body corporate assets.
There is a requirement both under the LSA and the BCCMA to rectify any inaccuracies in the original disclosure statement after the contract is entered into. Under the BCCMA a buyer has 14 days after receiving a rectifying statement to terminate the contract if they are materially prejudiced by the inaccuracy. Under the LSA the rectifying statement is given as “as soon as is reasonably practicable after the proposed lot has become a registered lot”.6 A buyer can terminate a contract under the LSA if they are materially prejudiced by the original inaccuracy or failure to give a notice rectifying any inaccuracy. However such termination can only occur before the expiration of 30 days after a correcting statement has been received or the delivery of a registrable instrument of transfer whichever is the earlier.
The EPA provides that land which is on the Environmental Management Register can only be sold where the buyer is notified in writing that the land is on such register prior to the contract being signed. A failure to do so entitles the buyer to terminate the contract at any time up to completion.
What is waiver
Where a party is entitled to bring a contract to an end but chooses to continue with the contract by exercising rights or otherwise conducting itself in a way explicable only on the basis that the contract remains on foot then that party is taken to have affirmed the contract and thereby lost the right of termination.7 This principal was recently applied in Mirvac Queensland Pty Ltd v Beioley8 where McMurdo J said9:-
“In Agricultural and Rural Finance Pty Ltd v Gardiner, Gummow, Hayne and Kiefel JJ held that “the exercise, despite knowledge of a breach entitling one party to be discharged from its future performance, of rights available only if the contract subsists, will constitute an election to maintain the contract on foot.” In this case there was no issue as to the defendants’ knowledge of the relevant facts because at least by 5 May 2009 they knew that the building which had been constructed had balconies of these different areas and they knew what they had or had not received insofar as s 22 was concerned. The defendants argued that they did no more than keep open the possibility of settlement, by calling for the transfer to be provided for stamping. But in doing so they invoked cl.3.3 of the contract and thereby required the plaintiff to perform the contract. That was a right only available to them whilst the contract subsisted and in my view would have constituted an election to affirm the contract had I concluded that the defendants had a right to avoid it.”
Public or private right
A statutory right can only be waived if it confers a private benefit although some public benefit may also be involved.10 Douglas J made it clear in Blackman v Milne11 that the right to terminate contracts for the sale of residential property for non compliance with the warning statement requirements in PAMDA were rights which could be waived.
Some authorities suggest that waiver of a statutory right of rescission requires knowledge not only of the relevant facts but also the legal right to rescind. Stephen J in Sargent at 645 after reviewing the relevant authorities:-
“I am not to be taken as concluding that where contractually conferred rights are not an issue there can be no binding election without knowledge of the right to elect.”
Similarly Mason J in Sargent said at 658:-
“For my part this proposition correctly states the law in its application to contracts as well as interests in property. If a party to a contract, aware of a breach going to the root of the contract, or of other circumstances entitling him to terminate the contract, though unaware of the existence of the right to terminate the contract, exercises rights under the contract, he must be held to have made a binding election to affirm. Such conduct is justifiable only on the footing that an election has been made to affirm the contract; the conduct is adverse to the other party and may therefore be considered unequivocal in its effect. The justification for imputing to the affirming party a binding election in these circumstances, though he be unaware of his alternative right, is that, having a knowledge of the facts sufficient to alert him to the possibility of the existence of his alternative right, he has acted adversely to the other party and that, by so doing, he has induced the other party to believe that performance of the contract is insisted upon. It is with these considerations in mind that the law attributes to the party the making of a choice, though he be ignorant of his alternative right. For reasons stated earlier the affirming party cannot be permitted to change his position once he has elected.”
The Full Federal Court of Australia (Von Doussa, Mansfield and Goldberg JJ) in Ellison v Lutre Pty Ltd and Anor12 held that there is no such rule and it is a matter of construction of the particular statute to determine whether the option to avoid may only be lost if there is knowledge of such legal right. In Queensland no such distinction has been made in relation to waiver of rights pursuant to the PAMDA.
Analysis of authorities
In Juniper v Roberts13 a contract for the sale of residential land failed to have attached to it a warning statement as the first or top sheet. Accordingly there had been a prima facie breach of section 366 of PAMDA. However the contract was not due to settle for two years. Mr Juniper (the purchaser) moved into possession, leased the property to other people and carried out some renovation work. It was also advertised for sale but not sold. Shortly before settlement he gave notice of termination as a consequence of a breach of section 366(3) of PAMDA.
The vendor argued that Mr Juniper waived his right to terminate the contract. In finding there had been no waiver Douglas J said14:-
“Because section 367(2) provides the right to terminate at any time before the contract settles it also seems to me that it is correct to say that there is no occasion to elect between alternative rights in this case. In proceeding with the contract until close to the time for settlement Mr Juniper did not elect to forego the statutory right to terminate at any time before settlement. Accordingly, there is no occasion to apply the doctrines of waiver or election.”
In so finding Douglas J followed the decision of Muir J in M P Management (Aust) Pty Ltd v Churven15 where it was held:-
…there is no inconsistency between acknowledging the existence of the contract and taking a step under or in reliance on it on the one hand and the maintenance of the right to terminate conferred by section 367(2), on the other. That provision gives the buyer the right to terminate the contract at any time before the contract settles, irrespective of the nature and extent of the performance under the contract and irrespective of the party’s conduct by reference to it. Consequently, failure to exercise the right of termination of a contract, even with full knowledge of the right to terminate, is not necessarily inconsistent with acts which acknowledge the continued existence of the contract”.
These decisions seemed to be decided on the basis that because there is a right to terminate at any time before the contract settles the purchaser can do what he or she likes but always maintains such statutory right. That is inconsistent with the approach of McMurdo J in Mirvac v Beioley.16
The right to rescind arises upon entry into the contract if there has been a breach of the legislation. The purchaser does not have to elect immediately but upon acquiring that right (which occurs if the contract is entered into in breach of the legislation) any act “done by it and consistent only with the continuation of the contract on foot the law would hold to constitute an election against rescinding”.17 The decision in MP Management (and presumably Juniper) may also be explained on the basis that such decisions were made prior to Agricultural and Rural Finance Pty Ltd in the High Court. One also might be excused for thinking that the following passage in Blackman is somewhat difficult to reconcile with the later decision of Juniper:-
“My conclusion is, therefore, that the applicants have waived the breach by the respondents and Mr Ugrinic of their statutory obligations to direct the applicants’ attention to the warning statement under section 365(2)(c)(ii) by affirming the contract in spite of those breaches”18
Hedley Commercial Property Services Pty Ltd v BRCP Oasis Land Pty Ltd concerned whether a contract for the purchase of land was “residential property” within the meaning of PAMDA and if so whether the purchaser became bound by a relevant contract such that he was entitled to exercise his right of termination under section 365(3). The case was ultimately decided on the basis that the land did not constitute residential property (which was affirmed on appeal) but Fryberg J went on to consider an argument that the purchaser had in any event waived his entitlement to withdraw his offer. In finding there had been waiver his Honour said19:-
“It is correct for waiver to have occurred, there must have been conduct by Hedley which was inconsistent with the continued existence of the right to withdraw the offer…(Hedley) intended the consent to convey to BRCP and the Office that it was a party to the binding contract. With that intention it sent the consent to BRCP for forwarding to the Office. So the Act was inconsistent with retaining an option not to be bound by the deed”.
Of course Fryberg J was not considering an argument that a statutory right of termination which was available up to the day of settlement could not be waived. Juniper and Blackman were considered by His Honour but only in passing.
Collis v Corrumbin Investments Pty Ltd20 concerned an alleged failure to draw a purchaser’s attention to a PAMDA warning statement. The contract in question was not only for the sale of land but also the construction of a house thereon. Prior to settlement the vendor offered further inclusions in the dwelling and requested an extension for the period of construction allowed by the contract from 18 months to 36 months. The purchaser signed and returned a form agreeing to the vendor’s proposal. Ultimately the case was decided on the basis that the purchaser’s attention was drawn to the warning statement but the Chief Justice went on to say21:-
“…because if, contrary to my view, the respondent had not complied with section 365(2A)(c)(ii), in October 2008 Mr Collis acted in such a way as to waive his statutory right to have the warning statement drawn to his attention or to terminate in relation to any aspect of that requirement”.
In so finding the Chief Justice referred to Blackman but was not referred to either Juniper or MP Management (Aust) Pty Ltd v Churven.
Juniper and Blackman were considered by the New South Wales Court of Appeal in Tudor Developments Pty Ltd v Makeig22 in relation to s.96A of the Home Building Act 1989 (NSW) which required a certificate of insurance to be attached to a residential building contract and the extent to which that requirement could be waived. In finding that s.96A on its proper construction did not “import equitable principals from the general law” and accordingly could not be waived Baston JA (with whom Beazley JA agreed) said23:-
“But it is important to note in the present context that there is some apparent inconsistency between the statement in Blackman, repeated in Juniper, that a buyer could “waive” a breach by a seller prior to the time for completion, and the suggestion that the buyer could not “affirm” the contract, even knowing of his or her rights, so as to preclude a later exercise of the right to terminate. The apparent inconsistency may be resolved by treating the right to waive the breach, asserted in Blackman, as arising where there has been a repudiation of the contract by the seller and not as permitting the seller to rely on general law principals in other circumstances. In any event the statutory terms differed in material respects from the present case: the requirement for a binding contract identified in the Queensland Legislation involved no prohibition on any particular conduct, nor the imposition of any penal sanction.”
The issue of whether a right to terminate up to the date of settlement means there can be no waiver prior to that point was considered by Handley AJA in his dissenting judgment as follows24:-
“The short question is whether the statutory power of avoidance under s 96A(3) subsists until completion regardless of any conduct by the purchaser in the meantime, or whether the section merely defines the maximum duration of power by identifying the last possible moment for its exercise. One might ask whether the section discloses an intention to protect the purchaser from himself by preventing him electing to affirm the contract before completion. “In my judgment, the appeal should be allowed and the Court should answer the preliminary question by declaring that 96A(3) on its true construction does not prevent a purchaser with the option referred to in that section making a binding election to affirm the contract prior to the completion if, at the time, the purchaser was aware of the alternatives and intended to choose between them.”
In Turrisi Properties Pty Ltd v LJ & BJ Investments Pty Ltd25 purchasers sought to terminate contracts for the sale of residential property because as at the date of contract the land was on the Environmental Management Register (EMR) and no notice as required by s.421(2) of the EPA had been provided. In those circumstances the purchasers were entitled to terminate the contracts at any time prior to completion or possession.
In an action for specific performance the plaintiffs argued that soon after the contracts were entered into the purchasers were notified that the land had been on the EMR but removed and because of the purchasers’ conduct thereafter they waived their entitlement to terminate the contracts pursuant to s.421(3). Wilson J refused the claim for specific performance holding that the particular provision of the EPA conferred a public benefit which could not be waived. In particular Her Honour said26:-
“[124] In my view there is an element of public as opposed to private benefit in the right of rescission given by s.421(3). The object of the Act, the protection of the environment for allowing ecologically sustainable development, can be characterised as the advancement of the interests of the community as a whole. Subsections (2), (3) and (4) of s.421 not only afford consumer protection to a prospective purchaser; they also regulate the sale of affected land consistently with the object of the Act. It would be in inimical to that object to allow dealings in the affected land without notice of its being on the EMR or the CLR or the subject of a notice under s.373 or of an order under s.458. It would be just as inimical to that object to allow a purchaser to waive the benefit of subs (3) or (4) as it would be to allow it to contract out of those subsections. [125] In principal, a right otherwise capable of waiver cannot be waived until the time comes for is exercise. The right to rescind under s.421(3) may be exercised at any time until settlement for possession, whichever is the earlier. This is a further indication that the legislature did not intend that right to be capable of waiver. [126] I conclude that the right of rescission afforded by s.421(3) cannot be waived.”
Her Honour also adopted as correct Justice Muir’s approach in Churven about use of the words “at any time until settlement” as follows27:-
“[134] The plaintiff has particularised various conduct by each defendant in the period between 11 February 2008 and the date for completion as conduct consistent only with an election to affirm the respective agreements. However by s.421(3) the defendants could not rescind at any time before completion or possession. Accordingly, even if they had the requisite knowledge, there was no inconsistency between their acknowledging the existence of the agreements and taking steps under or in reliance on them on the one hand and the maintenance of their rights to rescind conferred by s.421(3) on the other.”
Interestingly s.421(3) of the EPA entitles the purchaser to terminate at any time before “completion or possession”. The right to terminate conferred by s.367(2) of PAMDA is at any time before “the relevant contract settles”. Obviously if the word “possession” had found its way into s.367(2) of PAMDA Juniper would have been decided differently as the plaintiff had moved into possession prior to settlement. It also seems under the EPA a purchaser can acquire land on the EMR with no knowledge of that fact, move into possession and lose any right of termination. It might be argued that the statutory right of termination prior to settlement is “waived” by entering into possession. On that basis it seems somewhat inconsistent to hold that a right to terminate pursuant to s.421(3) of the EPA can never be waived.
In Marchesi v Viridian Noosa Pty Ltd28 the purchaser of units in a resort development at Noosa contended that the authorised warning statement issued pursuant to PAMDA did not comply with the legislation. It was argued that because the warning statement says that there is a cooling-off period which commences when the purchaser is bound by the relevant contract but then goes on to say in another sentence that the purchaser is bound by the contract upon receiving a copy of the contract from the vendor (without making reference to the warning statement) the warning statement is misleading as not properly containing the information required by s.366D(1).
Douglas J dismissed the application for declaratory leave that the contract had been terminated and ordered specific performance. His Honour found that the warning statement did comply with the legislation and said that if the applicant’s argument was correct it would amount to an “absurd triumph of form over substance and one completely inconsistent with the commendable objects of PAMDA set out in s.10”29
However waiver was argued by the respondent in the alternative in that the applicant had acted in a way consistently with the contract remaining on foot. Without deciding the issue his Honour said30:-
“[15] The next issue was whether a buyer can be held to such an election in the face of the statutory provision in s 367(2) permitting him to terminate at any time before the relevant contract settles. I have previously decided in Juniper v Roberts8 there was no occasion to elect between alternative rights where this section applied. Mr Martin argued, however, that other decisions recognised a right to waive the benefit of such provisions.9 In fact in Blackman v Milne10 I recognised such a right where it was one created for the buyer’s private benefit but doubted the possibility of a party waiving a statutory right which reflected a public policy for the benefit of the community.
[16] Those decisions and a decision of the South Australian Full Court in Astill v South Esplanade Developments Pty Ltd11 were discussed usefully in the New South Wales Court of Appeal in Tudor Developments Pty Ltd v Makeig.12 Basten JA said:13
[65] It will be necessary to return to the authority of Astill, but it is important to note in the present context that there is some apparent inconsistency between the statement in Blackman, repeated in Juniper, that a buyer could “waive” a breach by a seller prior to the time for completion, and the suggestion that the buyer could not “affirm” the contract, even knowing of his or her rights, so as to preclude a later exercise of the right to terminate. The apparent inconsistency may be resolved by treating the right to waive the breach, asserted in Blackman, as arising where there has been a repudiation of the contract by the seller and not as permitting the seller to rely on general law principles in other circumstances. In any event, the statutory terms differed in material respects from the present case: the requirement for a binding contract identified in the Queensland legislation involved no prohibition on any particular conduct, nor the imposition of any penal sanction.
[17] In the circumstances it is unnecessary to express any concluded view in this case but the distinction drawn by me in Blackman v Milne related to whether the statutory provision said to have been waived created a private right merely for the private benefit of an individual or was a provision reflecting a public policy for the benefit of the community which could not be waived.14 Mr Douglas SC submitted that the possible penal consequences of the failure to attach a warning statement found in s 366B(3) also warranted the conclusion that these provisions of the Act could not be waived by the buyer.
[18] The public policy reflected in the requirements for the provision of warning statements appears to be directed at the benefit of the community generally so that, if it were necessary to decide the issue, I would have been inclined to the view that the proper performance of the statutory provisions could not have been waived by the applicant in circumstances such as these. As I have formed the view that there has been no failure to comply with the Act, however, I do not need to discuss these issues further.”
I am also aware that a purchaser of residential property has purported to terminate their contract on the grounds that the warning statement contained printing which was not the correct font size. Apparently when the warning statement was downloaded from an official website the font size of the print was reduced. The difference is not discernable to the naked eye but apparently some of the larger lettering in particular the word “WARNING” is .5 of a point smaller than the authorised form.
This argument is only available because s.366D(2) of PAMDA provides that a warning statement is of no effect unless the words on the statement are presented in substantially the same way as the words are presented on the approved form. The following example is then given:-
“If words in the approved form are presented in 14 point font, the words on the warning statement must also be presented in 14 point font.”
This matter settled prior to the commencement of proceedings and accordingly a somewhat unmeritorious argument will never see the light of day.
Conclusion
In so far as the PAMDA legislation currently exists the right to terminate contracts for the sale of residential property pursuant to s.367 can in certain circumstances be waived. In the opinion of the writer, on the current state of the law, a purchaser does not retain the right of termination up to the date of settlement regardless of his or her conduct. Once it is accepted that the statutory rights conferred by PAMDA can be waived the general principals as set out in Agricultural and Rural Finance Pty Ltd dictate the circumstances in which conduct would constitute waiver of such rights.
Under the new legislation the scope for termination and arguments about waiver are limited. The conduct constituting waiver would have to have occurred within 90 days of the contract being entered into and of course prior to any alleged termination of the relevant contracts. However I am sure that lawyers with an eye for detail will continue to find ways and means of using the “new legislation” for avoiding the consequences of what is otherwise a binding contract for the sale of land.
Mark Martin
Footnotes
- PAMDA s.10(2)
- PAMDA s.363(b).
- PAMDA s.366, 366A and 366B.
- PAMDA s.366D.
- PAMDA s.367.
- LSA s.22(1).
- Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658; Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1992-1993) 182 CLR 26 at 41-42; Freshmark Ltd v Mercantile Mutual Insurance (Aust) Ltd (1994) 2 Qd.R 390; Agricultural and Rural Finance Pty Ltd v Gardiner & Anor (2008) 238 CLR 570 per Gummow, Hayne and Kiefel JJ at [56].
- (2010) QSC 113.
- at [33].
- Re: Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd.R 314 per Connolly J at 322.
- [2007] 1 Qd.R 198.
- (1999) 30 ACSR 615 at [64]; Tiplady v Gold Coast Carlton Pty Ltd (1984) 8 FCR 438.
- (2007) QSC 379.
- at (13).
- (2002) QSC 320.
- supra.
- Tropical Traders Ltd v Goonan [1963 -4] 111 CLR 41, 55; G K & M J Sommerville Pty Ltd v Winbirra Pty Ltd [2002] QCA 386 at [16].
- Blackman v Milne (supra) at [21].
- at [99].
- (2009) QSC 297.
- at [19].
- (2008) NSWCA 263.
- at [65].
- at [85] and [105].
- (2010) QSC 325.
- at [124] — [126].
- at [134].
- [2010] QSC 324.
- QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd.R 41 per McMurdo P at [1].
- at [15] — [18].
The paper began with a role play starring local counsel, academics and students: Wayne Elliott, Justin Gregory, Sean Johnson, Boyd Johnstone, Brooke Crosby and Dr Louise Floyd. (Dr Floyd co-founded the BAQ-JCU series in 2009 along with Ms Helen Breene of the Bar Association and Mr Tony Collins of the Townville Bar). The role play featured many of the things that could go wrong in a mediation eg attempts to influence witnesses; omitting crucial relevant new authorities; and misrepresentations about whether parties were willing to proceed to trial. Mr Douglas SC then addressed the appropriate ethical approach to these problems.
The evening was chaired by Hon Judge John Baulch SC, who was proclaimed Townsville’s new District Court judge earlier that day.
The BAQ-JCU series makes an important contribution to continuing professional development in regional Queensland
Hard at Work: Participants in the role play preparing for the night: Sean Johnson, Wayne Elliott, Richard Douglas SC, Dr Louise Floyd, Boyd Johnstone and Justin Gregory.
Cedric Edward Keid Hampson AO, RFD, QC was born in 1933, the eldest of three children. He attended St Joseph’s College, Gregory Terrace and, thereafter, graduated from the University of Queensland with Bachelor Degrees in Arts and Law.
In recognition of his leadership, academic success and skill on the rugby field, he was awarded the Rhodes Scholarship for Queensland in 1955, subsequently reading for a Bachelor of Civil Law at Magdalen College, Oxford.
Mr Hampson was called to the Bar in 1957 and commenced practice in 1959. He quickly established a prodigious practice and took Silk in 1971. His career spanned almost five decades and, for the lion’s share of that time, he was the unassailable leader of our branch of the profession. He retired from practice in 2006 after 35 years as a Silk.
Throughout his time as a barrister, Mr Hampson was known not only for his dominant presence but, equally, for the consistently high standards of excellence he set in every facet of his practice.
Among his many accomplishments, Mr Hampson was President of the Bar Association for two separate terms separated by over a decade (1978-1981 and 1995-1996), the first Chairman of Barristers Chambers Ltd, the First Chairman of the Management Committee of the Bar Practice Centre, Chairman of the Incorporated Council of Law Reporting and, from 1976 to 1978, the Honorary Air Aide-de-camp to Her Majesty the Queen.
During his terms as President, Mr Hampson introduced a number of innovations to the Queensland Bar. Alongside his major achievement – the construction of the Inns of Court – he also oversaw the designing of the Association’s Crest, the publication of Annual Reports for the first time and the establishment, in 1980, of Bar News.
In a biographical note published in the April 2001 edition of Bar News,1 Tony Morris QC had this to say:
More than half of Queensland’s barristers were not born when Hampson commenced in practice; had not commenced to study law when Hampson took Silk; had not graduated from Law School when Hampson first became President of the Bar Association; and have known no other leader of the Bar. At one time or another, Hampson QC has led many of the State’s current judges and senior counsel. To be his junior is an invaluable educational experience – not only for what one can learn from his profound knowledge of the law, his finely-honed forensic techniques, and his wealth of litigious experience, but also for the courtesy and kindness which he shows to his instructing solicitors, his clients, and (above all) his juniors. It is inevitable that, given his preeminence within the profession, opportunities have arisen for Hampson to accept judicial appointment. That he has chosen (for whatever personal reasons) not to accept such offers when they were made has been the judiciary’s loss, but the Bar’s gain. As a great believer in the collegiate spirit which once characterised our Bar – but which, sadly, is not so evident today as it was in times past – Hampson QC has continued to maintain an “open door policy” to any member of the Bar seeking his advice or guidance. Anyone who has the good fortune to work with him, or the intellectual challenge of working against him, cannot fail to benefit from the experience. Hampson QC’s service to the Queensland Bar and the legal profession in this State is not quite unique merely for its longevity. A.D. McGill QC was in continuous practice from 1911 until his death in 1952. Sir Arnold Bennett’s career spanned 51 years, 35 of them as a Silk, although it was interrupted by a period when he left practice to pursue commercial interests. Yet few could rival the depth of Cedric Hampson’s contribution to his profession. The Inns of Court, at the corner of North Quay and Turbot Street, will stand for many years as a testament to Cedric Hampson’s organisational skills, his foresight, and (above all) his remarkable ability to cajole even the most parsimonious members of our profession to give up their dilapidated rooms in a converted boot factory, and make an investment in their own and the Bar’s future. It is particularly fitting that the dominant feature which graces the lobby to this building is a sculpture by Catharina, Hampson’s wife of 52 years. It is quite impossible to catalogue the extent and significance of Hampson’s contribution to the development of the law in Queensland and Australia, across the vast range of cases in which he has appeared at every level. A perusal of the Commonwealth Law Reports and the Queensland Reports since the early 1960s readily demonstrates, not only the huge number of cases in which he has appeared, but also the extraordinary diversity of those cases – crime, personal injuries, defamation, commercial and industrial matters, town planning cases, property disputes, and constitutional matters. One might say, as Thomas Moore said of Sheridan, that he has “run through each mode of the lyre, and was master of all.”
In addition to his many interest outside the law, Mr Hampson is a published author, having recently published his sixth novel, Occasions of Sin.2 He retired from practice in 2006 after 49 years at the Bar and, when Hearsay recently stopped by to catch up, Mr Hampson was relishing the additional time he now has to spend with his wife, prominent Dutch-born sculptor, Catharina, as well as his four children and ten grandchildren.
What follows is the transcript of a conversation that took place between Mr Hampson QC and Martin Burns SC on 3 September 2010.
University of Queensland
After finishing your schooling at Gregory Terrace, you attended the University of Queensland. How many undergraduates were there in your year?
In my time, the total Law Faculty consisted of about 40 people and, in our year, there were about 11 students and three of them left before the end of the year. One of the three who dropped out was David Malouf. He could have done it if he’d wanted to but he thought it was all very silly stuff. So we finished up with eight, but that was considered back then to be a big year. The next year was lessened in number by failures and things of that kind, and the year above that there were probably only about four or five.
What was the campus like in those days?
The University was quite rustic. We had only a short time before moved from George Street to St Lucia. There were great areas there that no one ever walked. What you did was you went from the Law Library down to the coffee shop. That was the place where you could do some social meandering. The centre of activities as far as the law students was concerned was the Law Library. That was the place where all the plots were hatched. In those days the law students really ran the Students’ Union. We nearly always had the President of the Union as a law student. We very often had the editor of Semper as a law student and just generally we seemed to have a big number of law students pushing their beaks into everything. So the place where these plots were made – how we were going to take over the Union and how we were going to do this and that – was always in the Law Library. There was always something or other going on in the Library. The librarian was Joy Nichols. She was there just about the whole time I was a member of the law school. She was very good at concealing the undergraduates from any evil that might be wished upon them by the authorities.
What would you get up to when you were not hard at work studying?
Oh, A few things. One of them was the great hoax that we perpetrated on the occasion of the French Government putting on an exhibition called “French Art Today”. They had very French-looking red, white and blue posters up everywhere, so John Gordon and myself conspired together to come up with a hoax. We produced two paintings and, because I was better technically than John, I did most of the painting. One was called “Pippa Passes” depicting a big Rubenesque woman on a red bicycle. The other one was an abstract with University football socks, fried eggs and all other sorts of strange things in it. So we introduced these two paintings into the French exhibition. They had a set-up in the tower at the main building and we hung the two paintings there and then had incredible fun hanging around the place and listening to all the experts comment on them.
Andy Thompson was an English teacher at the University. He was a Scotsman who made a fetish of being an outspoken person. He wasn’t so easily fooled. I recall him saying, “They’re a lot of rubbish” and holding forth to a number of people about the poor standard of the French paintings of which our two were the principal ones. But on the other hand we had quite a few people say, “Oh no, these are very good paintings. Don’t you see it?” So we had this great debate going on and it made the Courier-Mail as I remember it. It was a big joke for a few days and it was during Commemoration Week. The Commem Ball was held out at Cloudland and Nippy Power got up and imitated a pseudo-French art dealer giving a terribly funny appreciation of each of the paintings. In the next year, we cemented a statue into the ground near the main building close to where people exited from the bus going to St Lucia. We dug a hole, put the statue on a stand and placed a big sign on which was inscribed the maxim “Quicquid plantatur solo, solo cedit” (Whatever is fastened to the soil belongs to the soil). Everybody coming from the bus saw this and thought somebody must be mad putting it up. They shook their heads and pointed knowingly to the statuary.
Who were your lecturers?
In those days there was Professor Walter Harrison. He was the Garrett Professor of Law. Then we had Ross Anderson who was Professor of International Law and also Eddie Sykes. Eddie was quite a funny sort of fellow. He was quite an eccentric. He used often to wear different coloured socks, a black one on his left foot and a red one on the other. He had an Austin with a pull-up boot and, I remember one day he drove out to the University with the boot open. He just drove around, just forgot about the boot. Speaking of Eddie Sykes, about five or six years ago I gave a speech at the Law Function down at the Gold Coast and, during it, I went into some of these eccentricities that Eddie used to be guilty of and, I have to say, I believed at that time he was dead. Imagine my horror then when, at the end of the lecture, he came up to where I was sitting and said, “Ah, ha ha”.
Magdalen College, University of Oxford
You recently attended a photo shoot at the Federal Court where you and others who attended Magdalen College were assembled. How was it that you came to do the BCL there?
It was coming into the fashion I think. Previous to that I think most Australians used to read the BA in Jurisprudence which is the primary law degree in Oxford. The BCL was a degree that was founded by Henry VII so it was quite an ancient degree and Bachelor of Civil Law meant Roman Law, of course, not English law. So it was extra to the idea of BA in Jurisprudence which was the English Common Law and I think it had just sat there for a long time and nobody did much about it but gradually it became the popular degree. You found a lot of great scholars doing it because they had already done a primary law degree and it fitted quite well in with the BCL. Ross Anderson was the one who encouraged me to apply for the Rhodes Scholarship and, through Paddy Donovan, to apply for Magdalen.
You mention Paddy Donovan. Was he the first to go to Magdalen College from Queensland?
I wouldn’t say that for sure, but he was the first one I knew of and he’d become a Trade Commissioner with the Australian Government in Europe. He married an Hungarian noblewoman of some kind and so, at that stage, he was based in Rome which she rather liked. She was back among the European nobility. They eventually came back to Australia and I think he then took a job at the Sydney University as a Professor in Law.
You spoke the other day with great fondness about your time at the College. It was obviously a great influence in your life?
Oh yes, it would be very hard to dislike Magdalen. I don’t know anybody who didn’t like it to be honest. It was a college that was founded in the 15th century and consists of a number of buildings. One of them is the “New Building” which I think was built in the 16th century. They’re all very fine buildings. Architecturally they have their different styles but they seem to harmonise quite well and you enter off the High Street through the Porter’s gate and there is a series of courtyards going to your left and to your right. They are the typical buildings that you get at Oxford, although they have been better preserved at Magdalen for the reason, I think, that Magdalen was a very rich college.
Going over there must have been a big step for a young man to take?
Oh yes. At that stage, Oxford was an unknown country as far as I was concerned; somewhere on the other side of the world. I had read about it in books and so forth; it was the headquarters of King Charles during the Civil War in England. But I didn’t know much about it at all. You’d see some books which showed photographs of the places, but it was quite a different situation here. When you were told to apply for the Rhodes Scholarship, you didn’t know what it was so you had to immediately read up on that and find out what it was. You had no idea of what College to go to and it was quite a trip to get there. You had to take a ship and you were gone for two years; the two years of your scholarship. Whereas when I was on the Rhodes Scholarship Selection Committee, you came across students who had already been to Oxford two or three times before they applied for the Scholarship. They had been there and had a look to see which College they liked. Quite different in my day; we had no idea what the place looked like. We were just people who applied for the scholarship. We were all sort of little fellows, no great money at all and none of us had ever been out of Queensland. We didn’t know anyone when we arrived in England.
So you went there by ship?
Yes. It took just under four weeks. It was only when the wide-bodied planes came in some years later which took people at a lesser cost than your ship passage that air travel started to become viable. Then when they continued to get bigger and wider-bodied planes to take more people and at a price which stayed the same although the value of money fell, it became even more affordable.
So I take it that, once you arrived, there could be no thought of returning until after the course was completed?
No, you just didn’t have time for that. The only instance I can remember of that in my time was an American student. This was back in 1956. Jack Robertson was his name. His father was Assistant Secretary of State who was a big heavy hitter, as they say in the American Government. Jack had a mad idea after meeting up with a Chilean playboy who was going to study architecture at the Sorbonne. Jack decided he was going to do architecture. He was very impressionable fellow, Jack. So Jack wrote to his father and told him what he was going to do and his father said, “Come home!” So he caught a plane back to the United States and got dressed down by Daddy. He then came back, resumed his law course and finished it.
Who were the tutors when you were there?
Rupert Cross, John Morris and Guenter Treitel. Not that Treitel ever tutored me. He was a junior tutor who did all the donkeywork, but specialised in contracts.
Sir Rupert Cross was blind was he not?
Yes he was. He would have women to come in and read law reports to him and books on the law. He had a little Braille notebook and he’d make notes on that as they read. He had this fantastic memory that always amazed me. I can in particular recall one tutorial that I’d written an essay for him and I had included what I thought was a pretty smart point. In tutorials he would sit there and listen and make little notes in Braille and when I was finished he’d then comment. I thought I had got to this particular point I made in my essay by brilliant invention and he said, “Well, it’s a pity about that Hampson; you’re a bit late”. He then told me that the point had been decided against me in a case that he then gave the citation for off the top of his head. The thing was though, it was not a case that had ever been reported or mentioned in any book. I was crushed.
Did you play any sport when you were in England?
I had played rugby at Terrace, so I played rugby for the College. I also rowed in the Eights. I remember one time being concerned about not having done some portion of my academic work and being asked about that by one of the Dons from the House. I told him that I had been quite busy with Eights, but I fully expected that he would not think that to be a very satisfactory explanation. However, to my astonishment, he seemed to take it as a perfectly good excuse. I was quite surprised. I thought he was pulling my leg, being sarcastic, but I don’t think he was. I think he just genuinely thought, as people at the House would, that rowing was more important than study.
Early Years at the Bar
Did you have any family in the law before you started?
No, I didn’t, although I lived at Ashgrove down the street from Brian O’Sullivan and Len Draney. Doug McGill was around the corner. So within less than half a mile lived three practising barristers.
When you commenced practice in 1959, the Bar was relatively small?
There was something like 68, if you included the non-practising people. There was Jack Hutcheons. He was one of our eminent mentors but I don’t think he had been in Court in a long time. You know, he didn’t much like that. But if you included everybody who had been admitted and who might have had chambers around the place, I think you got to that number.
Where did you go into chambers?
I went into the old Inns of Court into Fred Cross’ chambers. Fred had quite large chambers and he also had Ray Smith there. There were two tables. Ray had been in there for a while and I heard he was moving out. I went along and saw Fred and as a result moved in with him.
Did you receive good support after you commenced?
Oh yes. They were much better in supporting each other in those days. Much better in relying upon what other people said. There was never any suggestion that I can remember of having a fight as to whether or not this had been said or not or threatening to get somebody reported for wrong conduct. Sadly, that seemed to be a frequent thing towards the end of the time I was at the Bar. You’d have barristers fighting between themselves and somehow I’d get brought into it to say who was right and who was wrong. You would have one Silk accusing the other of unprofessional conduct and the other making the same allegation. There was nothing like that when I started.
Who were the luminaries at the Bar in the early days?
Well, there was Dan Casey, of course. He was in the criminal sphere. He was out on his own. Everybody talked about Dan Casey. He was a very nice fellow. I can remember once I won some sort of case against him, and I remarked to him that it was just luck and he said, “Never say that. It’s hard enough to win anything but when you win a case, just take credit for it, Cedric.”
What made Dan Casey so good?
First of all, he was an impressive fellow, really. If you saw him walking along the street, you wouldn’t think much of him. He always wore a three-piece dark suit and a hat, jaw jutting out and probably a cigarette hanging out of his mouth. But he had an austere air about him.
But then when he got into Court, he was quite a different fellow and even Judges wanted to stay on his right side. He just was the centre of power in the Court. He had a very good knowledge of the law. I wouldn’t say he was a great lawyer, but he was extremely good in the presentation of a criminal case, the way he would cross-examine, take objections and all that kind of thing. He was not exactly long-winded – I wouldn’t say that – but he was never short. You got the whole story, every sensible point would be made quite well.
Who do you recall practising in civil?
The most senior Silk in my time was Mostyn Hangar. He wasn’t in the Inns of Court. He had rooms in a little building that I think has since been demolished. It was a bit towards King George Square from the old Inns of Court. Arnold Bennett was a Silk, with his own chambers, although he had been away for a while from the Bar trying to drum up a real estate business. And then among other people who were Silk were George Lucas and Graham Hart. And of course we were seeing the last year of A.D. McGill QC ending his forty-two years at the Bar.
What about juniors?
There was no one exactly of my vintage. People like Bill Pincus came along after I started but, before me, I don’t think anybody had gone to the Bar for a couple of years. I know that I was the only one admitted in my year who started practice.
Building a Practice
When you started out did you set out with the objective of taking a brief in anything that was offered to you?
Is that something that you continued until your retirement?
If I was asked, and I was available, that’s the rule. You’re supposed to take anything you’re offered.
And that of course included criminal matters?
That’s right. Yes. I applied the cab-rank rule and appeared in crime throughout my whole career.
Advocacy
Over your career, who were the advocates of note?
Well Barwick was a great advocate. I didn’t see a lot of him because when I started at the Bar he was on his last legs and of course in Sydney, but I saw him on a few occasions. He was very good because he’d got to the stage where he had a tremendous amount of confidence in his own opinions. And he was a bit of a larrikin deep down, let’s face it. He was quite impressive. Keith Aickin from the Victorian Bar was quite a good advocate. He was quite remarkable, the sort of thinker he was, but he was quite good because he got all the ducks in line all the time. You could see where he was going. One of the very best ones here was Gordon Garland. A lot of people didn’t think that, but Gordon was very precise and very good. I can remember him doing running down cases and building cases, before the Matrimonial Causes Act came along in 1959. After that, he started doing more matrimonial cases and then didn’t do anything else but towards his last years. And Gordon was a fine cross-examiner.
What makes a good advocate?
Well, first of all, knowing his work is very important. He’s got to know all the factual ups and downs. The next thing I suppose is he’s got to be careful that he has a correct attitude so far as the judge is concerned; that he doesn’t try to put one over the Court. In more recent years, people would admit to me that that’s what they were trying to do, and to me that’s unbelievable. That’s one thing an advocate’s got to be very straight with. He’s got to be straight with the other side too, so they can rely on his word. And then he has to be able to know what the law is. That’s not a great difficulty because there’s always a limited number of cases so that’s easy enough to deal with that. I think though there are some judges who go a bit mad about this. For instance, I can remember I was in a case once, and it was to do with the interference with a right of support of the land. We had an Act in Queensland that governed the position and there was a similar Act in New South Wales. I looked at the New South Wales cases because there was no Queensland case. So, in my written submissions, I referred to the New South Wales cases since they answered whatever the point in issue was. Anyway, I put that in and the judge in his judgment was rather critical of me by saying something like, “Well this was submitted on the other side by Mr Hampson, in a very short submission. He didn’t really enlarge on it.” But there was nothing to enlarge on. The point was clear and straightforward. The judge then went on to talk about it at length and agreed that what I had raised was the decisive point. But some judges want to make a big thing about what the law’s about, they want to have a big discussion going on for ages. There was no need for that. Lastly, it’s useful if you’ve got a good memory. That’s important with cross-examination; to remember pretty well exactly what the witness said. So you’ve got to have that memory going for you all the time you’re asking questions. And I think if you have all those things, if you can tick all those boxes, you’re probably all right.
Does courtesy as an advocate still have a place?
Of course. You’ve got to be courteous to the other side. And also you must be polite to the judge. In addition, I think you’ve also got to be courteous to the witness that you’re cross-examining. I think that’s so important. You don’t want people to come to Court and go away with a terrible view of what happens. After all, the only reason that we’ve got a legal profession is to deal with some expertise and professionalism with what the clients can’t really deal with themselves, because they’d probably end up in fisticuffs when they started to talk about it. So, to avoid that, you get a legal professional. So the barristers have got to be a stage above the clients’ barneying, and I think that’s important. If you play the man rather than the ball, you’re taking your eye off the ball. It’s very risky doing that. You might very well end up losing the case because of it.
Written Advocacy
You mentioned written submissions. What do you think of the relatively modern trend towards written, as opposed to oral, advocacy?
I think they probably overdo the move to written submissions, because you have to bear in mind that it takes a long time to do a good set of written submissions. The traditional way is to get your case ready and then you can present it orally. Sometimes, you might use a document that presents the argument in a dot point sort of form. But then you would always get up and speak about it. To put all that in proper submission form, it probably adds days to it by the time you set it all out. So that’s one thing that’s quite bad about because it adds a lot to the cost of litigation. And I don’t know what the advantage is so far as the judges are concerned. Why you can’t sit there with a pencil and record your points is beyond me. If that fails, you are getting a transcript of what is said anyway. So I really don’t know why they need written submissions.
Specialisation
What then do you think about the trend towards specialisation where some barristers appear to set themselves up as experts in one particular area?
I don’t think it’s true specialisation myself. Really what you’re trying to do is to cut the eyes out of whatever briefs might be available and really reject all the rest because you like doing that work. I also don’t think you would become a very good barrister if you do that. You sometimes see that with people who specialise in work of some kind; they don’t really know their rules of procedure in Court and they can also be pretty hopeless at cross-examining.
Click here to continue.
Footnotes
- The full biographical note is reproduced on the Lex Scripta website – http://www.lexscripta.com/articles/hampson.html.
- For the full catalogue of Mr Hampson’s publications, go to – http://www.cedrichampson.com/books.html
Some Comparative perspectives
Discovery in the common law jurisdictions
The Queensland Uniform Civil Procedure Rules 1999 stipulate that a party to a proceeding ‘has a duty to disclose to each other party each document’ in its possession or under its control that is directly relevant to any allegation in issues in the pleadings or directly relevant to a matter in issue in the proceeding, if there are no pleadings (s 211). The Civil Procedure Rules in the United Kingdom state even more clearly what is well-known here, ie that the duty extends to evidence that supports the other side’s case in litigation: Standard disclosure requires a party to disclose “(b) the documents which — (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case […]’ (Rule 31.6, Civil Procedure Rules). The Australian Federal Court rules use the same terms to describe the documents that the party, upon whom a Notice of Discovery has been served with leave of the Court, must disclose.
There is thus no doubt in Australia that a party to litigation cannot choose to hide documents in its possession that are adverse to its own case; it must disclose them if they are relevant. Knowing that it will be obliged to disclose documents that are not favourable to its case will naturally impact on a party’s decision to litigate in the first place. Although apparently straightforward, the Rules’ application to a given document may well present some difficulty; it will depend, for instance, on precisely how the case is pleaded, whether or not a certain document might ‘adversely affect’ another party’s case.
Delay and cost inflation may result from the practical implications of a broad duty of discovery, sometimes to such an extent that the 2009 Report of the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System1, considered it a potential barrier to justice. For that reason Discovery is now under investigation on a reference from the Federal Attorney-General, which requested the ALRC to inquiry into and report on2:
- the law, practice and management of the discovery of documents in litigation before federal courts; ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute, including but not limited to:
- the effectiveness of different types of discovery orders
- the effectiveness and enforceability of requiring parties to identify and disclose critical documents as early as possible
- the effectiveness of different costs orders
- to limit the overuse of discovery, reduce the expense of discovery and ensure key documents relevant to the real issues in dispute are identified as early as possible;
- the impact of technology on the discovery of documents.
To that end, the ALRC is to have particular regard to ‘alternatives to discovery; the role of courts in managing discovery, including the courts’ case management powers and mechanisms to enable courts to better exercise those powers in the context of discovery; […]3’.
In Queensland as in other State jurisdictions, discovery is a significant topic in the current debates about potential reform of some aspects of civil procedure, also including the possibility of bestowing greater powers of judicial case management upon the civil courts.
Discovery in civil law jurisdictions?
In that light it is interesting to consider the fact that in civil law jurisdictions, there is no general obligation to disclose all relevant documents in one’s possession. Parties to civil litigation have no duty to alert the other side to any documents other than those they intend to rely on to support their own case. In other words, parties construct their case around documents selected from what they happen to have in their own possession. They can’t expect to rely on any documents the other side might have.
This of course greatly curtails the process of evidence gathering, as little or no pre-trial interaction between parties is required. In Germany there is not even a general obligation to provide to the other side (copies of) the documents on which a party intends to rely to support its submissions; thus article 142 of the German Zivilprozessordnung (Civil procedure rules) provides ‘(1) The court may order that a party produces to the court documents and the like that a party to the proceeding or a third party has in its possession and on which a party has relied’4. However, in France, the Code de Procedure civile (Code of civil procedure) stipulates that a party which refers to a document is obliged to communicate it to the other side prior to the final hearing5. It is implicit in the relevant provisions that parties are only required to provide those documents that support their own position to the other side6.
Thereby the cost, delay and strategic abuse of discovery that can occur in Australia, and is referred to by the ALRC, is readily avoided. On the other hand, the evidence on the basis of which a case is decided is naturally limited by this approach: the trier of fact may be denied access to probative documents that a party opts not to use because they are adverse to its case.
Discovery in context
Of course these starkly contrasting approaches to the rules for evidence production must be seen in the context of broader systemic differences between civil law and common law jurisdictions. The latter rely heavily on settlement of disputes to manage the volume of cases filed, whereas the former focus more on expeditious and cheaper court resolution of a greater volume of cases. In France and Germany, all the essential aspects of the factual evidence, as relied on by the litigant, tend to be simply referred to in the general submissions (or ‘conclusions’ in France) filed with the court. There are no extensive affidavits, nor is evidence normally comprehensively tendered during the trial or final hearing through oral testimony. Rather, witnesses are only on hand to respond to possible questions from the bench relating to their evidence as contained in the formal documents in the case file.
In civil law jurisdictions court decisions tend, partly as a consequence, to be much shorter, identifying, stating and applying principles of law to a potted version of the facts, rather than painstakingly recounting the facts and giving detailed attention to similar facts in precedent cases. The varying approaches to the parties’ obligations to produce evidence partly result in and from this difference in judicial technique.
Conclusion
Nonetheless it is interesting to reflect on the fact that discovery, which seems to Australian lawyers so critical to a fair system as it ensures that all probative and admissible evidence is before the court, barely figures in civilian thinking. On the other hand, in other ways Australian law is more selective as to what a court might see: whereas the common law applies strict exclusionary rules, which may result in probative evidence not being put before the decision-maker, civilian law applies fewer exclusionary rules, relevance as interpreted by the judge being the sole arbiter of admissibility.
As well as putting the Australian approach in perspective, the differences with civilian jurisdictions in terms of discovery also highlight some of the issues that will arise in cross-border litigation, where the parties own jurisdictions may impose very different obligations on parties to civil litigation.
These issues will be further addressed by a French and a German lawyers Frederic Veniere and Wolfgang Babeck during a Comparative Law Seminar chaired by Justice Douglas of the Supreme Court, entitled ‘“Discovery from a Comparative Perspective: German, French and Australian approaches” to be held at the Banco Court, Supreme Court Building, Brisbane on Friday 17 September at 5:30; see http://www.bond.edu.au/faculties-colleges/faculty-of-law/events/index.htm
William van Caenegem, Professor of Law, Bond University7
Footnotes
- See http://www.ag.gov.au/a2j
- See Discovery of Documents in Federal Courts: http://www.alrc.gov.au/inquiries/discovery
- Robert McClelland, Attorney-General, Terms of Reference, 10 May 2010; the ALRC is to report no later than 31 March 2011.
- Unofficial translation; the original text is as follows: (1) Das Gericht kann anordnen, dass eine Partei oder ein Dritter die in ihrem oder seinem Besitz befindlichen Urkunden und sonstigen Unterlagen, auf die sich eine Partei bezogen hat, vorlegt.[…]
- Code de Procedure Civile, article 132; if the document is not communicated in time the judge can exclude reliance on it at the final hearing: article 135.
- In case of failure to produce a document to the other side, or where it is in the possession of a third party, a party to the proceedings can apply to the court for an order to produce it: article 133, 134; 138-142.
- My thanks to Wolfgang Babeck and Frederic Veniere for information provided for use in this short article, and their extensive comments.
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When the Hon. M. D. Kirby, A.C., C.M.G. promotes the University of Queensland Law Revue as the best in Australia, his endorsement is a judgment which brooks no dissent. A certain degree of bias, however, may be apprehended for his relationship with the Law Revue is very close. Kirby J. (as he then was) opened the 2004 production with a pre-recorded cameo appearance and, in 2006, he shot a skit in the moot court where he revealed his abiding friendship with and profound admiration for the late Rt. Hon Sir. H. T. “Bill” Gibbs, G.C.M.G., A.C., K.B.E. (in whose honour that courtroom is named) to his cast-mates in a touching, impromptu tribute to the great man.
His fondness for the Revue has been consistently reciprocated. This year, the ladies of the company, swing-skirted and bobby-socked, proclaimed their love for him in a parody of Rick Springfield’s 1981 single, Jessie’s Girl, to which the otherwise underutilised Matt Hendry, emerging as Kirby from a judicial chorus line provided by the boys in black gowns and long wigs, contributed some pyrotechnically staged guitar showmanship. At times, his flare came worryingly close to his costume but it made a nice change from having Kirby’s character troop a rainbow flag across the boards.
Evelyn Peter’s choreography in this number and throughout the production was outstanding. She combined simple steps, which her dancers executed ably, very effectively. Her puppeteer invigilators in the examination room peripety of Stop Writing set to a reworking of Muse’s 2005 single, Glorious, were a highlight as was the show’s opening number, Let’s Drop a Subject Again, which even included, in a delightful homage to its antecedent, a tap sequence. The androgynous costuming for this scene — white poet shirts worn over black stovepipes with cropped black waistcoats and bow ties — also subtly referenced the Rocky Horror Show very nicely.
Donny Mourginos, the Convenor of the Revue this year, attacked his part in the number with appropriate abandon. His delivery and timing have improved over his years in the Revue and he gave big performances to justify his many other appearances throughout the production. He transformed Avenue Q’s Brian into an unemployed U.Q. graduate and, as James Cameron, he extolled in song the virtues of Avatar. This film seems to hold considerable fascination for the students. It provided the theme for [2010] 1 Obiter and, in the Revue, the subject of a further spoof and the context for a skit based on the activities of the Na’vi Students’ Society.
Mourginos made a confronting Kit Barker in the staff skit and, in an extraordinarily physical performance, a manic, “three-dimensional” solicitor. He played the victim of a bowel-loosening electrocution in an unfunny and overlong sketch which belonged more in the Cement Box than in the Schonell Theatre where the Law Revue has played a sell out run of four nights every year since 2005. The show would have benefited if a number of weak skits had been pruned altogether and tighter editing of the others had overcome a tendency to meander on self-indulgently, labouring jokes which had already been made.
Jack Fisher can still seem a little bit stiff at times but he inhabited the part of the smug graduate solicitor opposite Mourginos’ applicant in an interview where the participants smilingly told each other the unpleasant truth. Ffion Whaley was equally impressive as the firm’s saccharine human resources dragon. This sketch demonstrated the value of writing from experience. The quest for clerkships now, alas, consumes students but this picture of the interview process was all the funnier for its frightening accuracy. The misery of life in a firm was also fodder for a sketch but it did not ring quite as true. Like the “stage parson” in Chesterton’s Vampire of the Village (1936) who was all mixed up about the Anglican controversies, Liz Talbot’s managing partner displayed a grab bag of nasty but inconsistent traits. The writers have certainly struck soulless solicitors but they have not yet had to observe one closely enough to get inside her skin.
Nevertheless, the sketch reinforced the impression that the students don’t really love the law. Theatrical types may chafe a bit under the yoke and, no doubt, they play this up as a useful comedic conceit but no acknowledgement that law is fun was ever set off against it. The late Hon. P. D. Connolly, C.B.E., C.S.I., no square, once humorously likened a legal profession to the having of an abiding interest in crosswords which one was paid more than adequately to solve. If the Law Revue offers an authentic insight into the students’ worldview, there are troublingly few puzzlers among them.
The writers are, however, cricket aficionados who offered note perfect commentary (complete with telestration) on mores at the Forgan Smith building’s coffee shop. Still close to home, Lectopia perceived, in something of a student policy reversal, the dangers of relying on lecture recordings. Jo Sri brought the verve of Johnny Depp to his rôle as this skit’s pirate saviour. LLB on a Budget was a vehicle for Sri’s considerable hip-hop ability but the song’s tail twisted to make a telling admission against interest about spending priorities and holidays abroad. His sensitive interpretation of Norman the mature-age student in Last JD recalled the pathos of Sandy Stone, an affect which Sri also brought to his portrayal of a shambolic Suri Ratnapala.
As a Minister of the Crown in Filtered Alex Forrester would have earned the approval the late Paul Eddington, C.B.E.. but his star turn came channelling Andreas Schlönhardt in a rôle which he has made his own over the past few years. James Schlunke’s equally uncanny and long-standing impression of a huggable Russell Hinchy comes as a complete contrast to the hilarious heights of Forrester’s campery: these characters are now, if anything, even better than the real thing.
Julia Gillard’s distinctive speech pattern, vowels and mannerisms were exquisitely captured by Brianna Lee beneath a crimson pageboy helmet. Opposite her, Dan Wyatt, clinging to the captaincy of the netball team as Kevin Rudd, did well but his overly kind impression needed more of a purse-lipped pout to be truly convincing. Unfortunately, other, minor characters were often played with quasi-American accents seemingly to signal they were comic creations.
Under the baton of new musical director, Luke Trimarchi, the orchestra was excellent. At the piano, Trimarchi also proved a pleasing accompanist, especially in the amusing Facebook Date scene. A worthy successor to the extraordinary Arthur Abal has been found. Marita Rigby impressed on debut but, in general, the singing on opening night was, perhaps, not quite up to the standard of the playing.
Although this year’s production fell slightly short of the level of excellence set by last year’s show, Kirby’s assessment remains the view of the majority.
Andrew Curtin
