Sheridan Harbridge in barrister mode in Prima Facie
Prima Facie – five stars (and maybe 1.5 CPD points too?)
Is it kosher for Victorian lawyers to claim CPD points for attending a Melbourne Theatre Company play? Probably not. But you should see MTC’s current production of Prima Facie anyway.
Prima Facie is a one-person performance starring Sheridan Harbridge as Sydney criminal defence barrister Tessa. When we first meet Tessa she has ample work, friends, invitations, and a growing profile. Life and the law are both marvellous for Tessa. She defends sexual assault prosecutions (and much else besides) with zeal and frequent success.
But then one night things go very awry and, 763 days later, Tessa finds herself under cross-examination as the complainant in her own sexual assault case.
The result is excellent. It is an hour and a half of intelligent, often funny, frequently sad, always thought-provoking words, all grippingly delivered by a single actress whose only physical stage prop is a solitary office chair.
This is a mainstream play that is not especially directed at Australian lawyers but it will captivate lawyers and non-lawyers without the usual toe-curling legal inaccuracies and Americanisms that afflict so many legal dramas.
I give it 5 stars. (So, incidentally, does The Age.)
Now for the legal blogger’s musings:
My subsequent ruminations about the legal policy dilemmas in Prima Facie reminded me that the law of rape is about to be modified in Victoria with the introduction from 1 July 2023 of an “affirmative consent” requirement and with it the likelihood that rape conviction rates might increase. (Here is a link to the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 itself and a Victorian Government press release about the changes.)
Most practising lawyers in Victoria are required to complete 10 CPD (Continuing Professional Development) points before 31 March of each year. (See the Victoria Legal Service Board & Commissioner’s summary of requirements here.) That means you have about 6 weeks left.
Prima Facie finishes a week earlier on 25 March 2023. So, on the outside chance I’m mistaken in my opening suggestion that an excellent night at the theatre won’t qualify as professional development, you can and should get Prima Facie tickets before you finalize your CPD requirements for the year. After all, Prima Facie tickets are much more likely to sell out than any conventional CPD seminar on your radar.
Alan Bond (pre-Bell collapse, fraud conviction and bankruptcy) with a mate
There is something uplifting in properly farewelling the dead and the dying.
The Economist’s weekly obituary always floats my boat (here is its recent goodbye to Ruth Bader Ginsburg as a sample). Ditto almost anything from Nick Cave’s vast anthology of dirges (including the Sydney Opera House’s spine-tingling cover of The Ship Song). Gabrielle Faure’s Requiem is my perfect breakfast soundtrack (although it does cause my family to fling toast at me).
Maybe Master Sanderson of the Western Australian Supreme Court has similar tastes.
He has just added a nine paragraph Corporations Law judgment to the genre. It’s beautiful.
In a mere 675 words he retells the story of the Bell litigation which is now being laid to rest after 25+ exhausting years, makes some final formal orders, and even includes some wry funnies along the way.
It might well be the very first and last Corporations Act judgment you actually enjoy reading from start to finish.
Looking for an exotic read that traverses East St Kilda, L.A., London, Afghanistan and Malvern? Or researching the outer reaches of “disentitling conduct” in dysfunctional families for the purposes of Victoria’s testator family maintenance (TFM) regime?
Either way, take a look at Joss v Joss [2020] VSC 424 which was decided by Justice Elizabeth Hollingworth in the Supreme Court this month.
The deceased was an orthodox Jewish survivor of the Holocaust. He died aged 93 in 2017, leaving the entirety of his $12.4 million Australian estate to his wife of 61 years. The couple’s two children stood to inherit under Dad’s will if Mum predeceased him but as Mum survived Dad, they got nothing under Dad’s will.
One son apparently accepted this but his brother did not. That son – a 61 year-old now named “Jessica” (s/he has long been planning gender reassignment surgery) sued the estate under Part IV of the Administration and Probate Act claiming her father had a “moral obligation” to make adequate provision for her proper maintenance and support and had failed in that duty. Jessica initially claimed 100 per cent of the estate but whittled that claim back to between 30 and 45 per cent by the end of the trial.
What had the plaintiff done to deserve such munificence from her late father (and at the expense of the deceased’s widow, Jessica’a own mother)?
Here are just some of the highlights from Jessica’s resume:
After being expelled twice from the same school Jessica received a commerce degree from Melbourne Uni. She then worked in banking and finance in Sydney and London for a few years.
In 1989 Jessica briefly joined the US Marines but didn’t make it through boot camp.
She then moved home to East St Kilda where the deceased bought her an apartment in her own name and employed her in the family business.
Along the way, Jessica stole some of the deceased’s share certificates and bought herself a luxury car with the proceeds.
In 1998 the deceased started paying Jessica an allowance of $500 per month. That allowance never stopped (even after the deceased’s death) and by the time of the trial had grown to $1600 per week (i.e. $83,000 annually tax-free) plus miscellaneous extra payments from time to time.
In 1999 Jessica quit work at the family business and (on her own version) chose never to work again. She lived off her parents’ money thereafter.
At about the same time, she abandoned the St Kilda apartment she’d been given to stand empty while she took off to Tajikistan hoping to fight in Afghanistan.
She developed strong anti-Jewish, pro-Muslim views. She also attempted to get a job working with the Iranian government.
She boasted to friends that she was joining Al Qaeda.
She repeatedly demanded millions from her parents (as an “advance on her inheritance”) and threatened to kill herself if they refused.
She repeatedly embarrassed her parents publicly and privately.
She acquired a cross-bow and was arrested after threatening to kill the deceased with it at the family’s synagogue.
She accepted a brand-new car from the deceased in 2014 and never saw him again before he died three years later.
As at the date of trial (in Hollingworth J’s words): –
“Jessica’s life has essentially been on hold for 20 years, as she stubbornly waits for her parents to pay for the [gender reassignment] surgery that she would have been capable of saving for, and paying for, herself at various times during that period.”
“Jessica’s parents have furnished at least three previous homes for her over the years; she has either sold or abandoned all of the furniture.”
Jessica has “no superannuation, savings or substantial assets” and no dependents “except for an elderly cat”.
So did the deceased have a “moral duty” to make provision for Jessica in his will?
Too right, said Hollingworth J.
“By continuing to support Jessica for all those years, [the deceased] allowed her to become financially dependent on him, and to lose much, if not all, of her capacity for employment. This is the most important consideration in my conclusion that [the deceased] did owe a moral duty towards Jessica, notwithstanding her attitude and behaviour over the years.
….
“… I have determined that the sum of $3.225 million would constitute adequate provision for Jessica’s proper maintenance and support.”
Observations
Three thoughts occur to me.
First, like so many other TFM judgments, Joss contains some judicial platitudes about freedom of testation being “an important human right” but then illustrates that the limitations to that right can be very severe indeed.
Second, religious types might perceive in Joss an echo of the The Prodigal Son. They are wrong.
In the parable, the younger son received a large, early share of the family fortune and squandered it. He then saw the error of his ways and returned to the family fold to express regret and seek forgiveness. In Joss the younger sibling bypassed the family and went to court where expressing indignation rather than regret. And rather asking for forgiveness Jessica sought, among other things, the price of the hypothetical “impeccable” 2 or 3-bedroom house in Malvern or Armadale to which she aspired.
The only common thread between Joss v Joss and the Prodigal Son is that in both stories the older brothers must have come away dumbfounded. (The brothers might also have found themselves questioning the scriptural injunction: “The meek shall inherit the earth”.)
One final cheerful thought though. This type of case often prompts people to ask lawyers how they can be sure that a will won’t be contested after a testator dies. There is only one certain answer if you are a testator: make sure you spend every last cent you have before you turn up your toes.
Barristers should be good with words. Most (not all) are competent speakers. Many reckon they can write too but are frightened of active verbs, simple expression and short sentences. Only occasionally is a barrister strong enough with text to shrug off the law completely and find fame as a writer rather than as a barrister.
Charles Bean, Australia’s official historian of World War 1 was one such ex-barrister. Another is John Bryson, whose Azaria Chamberlain book ‘Evil Angels’ elevated a tabloided tragedy into serious long form journalism. A third is my friend and former roommate Justin “Jock” Serong.
As a barrister at the Victorian Bar, Jock had a wide and very solid practice. He ranged from native title work in outback Queensland and immigration work (both for and against the Commonwealth) through to high profile murder trials in Melbourne. But after hours, he started penning words for a surf mag too.
Things snowballed and eventually the writing won. To the dismay of his clerk, Jock upped stumps, left the bar and moved to Port Fairy. A decade and five published novels later, he is still there.
Jock has always loved a Quixotic adventure. At the bar, when he wasn’t defending or prosecuting the consequences of other people’s adventures, he was planning his own (although Jock’s enterprises were typically far more benign than those of his punters).
Inevitably, not all of Jock’s quests succeeded. One particularly ambitious scheme, with some mates, involved launching a large-format magazine they called the Great Ocean Quarterly. It was a highbrow fusion of salt water literature, photography, surfing, science, history and anything else that they could thematically tie back to the sea. They launched it in colour and on old-style heavy stock paper in 2013 in defiance of a booming internet and a languishing print advertising market.
But the doomsayers were right. After seven issues, GOQ was swamped by commercial reality and sank without trace in 2015.
Or so it seemed.
Could anything be more Quixotic?
Actually, yes. Jock and his team recently had a lightbulb moment and now they’re getting the band back together.
When GOQ closed its doors there was one issue still in utero. Now they’ve chosen this pandemic as an opportune moment to print that “Lost Eighth” edition as a one-off. According to Jock’s promo email, they’re doing it “to honour some hard work from some years ago, and bring something lovely into a riven world.”
“There’s not much that can be guaranteed in print media, but this much stands: it’s the best issue we never made.”
Is Covid-19 a frustrating event? To almost anyone but a contract lawyer that is a stupid question deserving a terse and emphatic response.
But any decent contract lawyer’s answer is unlikely to be short or sweeping.
In contract law, ‘frustration’ is the discharge of a contract as a consequence of some supervening and unanticipated event rendering some or all of the agreement’s obligations incapable of performance. The reported ‘frustration’ cases involve a litany of catastrophic surprises ranging from the appendicitis-induced postponement of King Edward VII’s coronation in 1903[1], through various wars[2] to (most familiar to Australian lawyers) the legal consequences of a contractor being injuncted from working 24/7 to build Sydney’s Eastern Suburbs Railway line[3] in circumstances where the construction contract was effectively predicated on ‘round the clock’ work.
The Covid-19 coronavirus is plainly a supervening and unanticipated event. It has already caused history’s first postponement of the Olympic games. It has closed all of your local gyms and eateries. It has largely shut down Victoria’s court system. And just when we lawyers thought things could not get worse, it is even causing surprise outbreaks of law and order. But none of these extraordinary developments alone answers the question of whether the current crisis is a frustrating event for the purposes of any particular contract.
Here is a quick refresher on the frustration of contracts:
When looking at whether a contract has been frustrated, don’t be too distracted by the macro picture. Focus on the specific contract in question. Has the contract become largely or completely incapable of performance because of the Covid-19 crisis? (Obvious casualties would be, say, the catering contract for a large wedding party that would now be contrary to the Public Health and Wellbeing Act 2008, or the contract for the screening of TV advertisements during the telecast of the now-postponed Tokyo Olympics.) Or has the contract’s subject matter simply become less attractive or more onerous to one of the parties? (Examples in this twilight zone might include the marriage celebrant’s booking for that same large wedding — after all, the wedding itself is still permitted even if the attendance of more than 2 guests is prohibited — or the screening of TV commercials (themselves still clearly legal and feasible) promoting, say, holiday packages that are neither legal nor feasible in the current circumstances.)
Frustration is a binary concept. Some contracts will be discharged entirely for frustration. Some will be held not to have been frustrated at all and thus will survive the supervening event entirely unscathed. There is no legal middle ground in between which allows contracts to be amended but otherwise upheld on the basis that they were semi-frustrated.
Extreme pessimists (and possibly also those negotiating contracts very recently) might have had the foresight to address specifically the consequences of global pandemics in their agreements. They will have no need for the doctrine of frustration and will instead be governed by the force majeure clauses (aka ‘Act of God’ clauses) to which they have agreed. As frustration applies only where the supervening event is not anticipated by the contracting parties, frustration and force majeure clauses are best thought of as alternatives to each other.
Frustration ends a contract as a consequence of the supervening event. By contrast, force majeure clauses are bespoke provisions. They might end the contract but will commonly suspend rather than terminate the contract or reduce rather than eliminate a party’s entitlement to payment.
Frustration operates independently of the parties’ acts and intentions. Force majeure clauses are authored by the parties and as such will often require action or communication for invocation.
Consequences of frustration
Let’s suppose a given contract is frustrated by Covid-19. What next?
Melbourne’s Formula 1 Grand Prix last month is a high profile example. Armies of large and small contractors and sub-contractors were involved in setting up for the race and its various satellite events. The race was then cancelled at the last minute because of Covid-19 concerns. Myriad contracts must then have become incapable of performance. In each instance, the question arises of who should carry the cost of the food/ entertainment/equipment that was arranged and (mainly) delivered but ultimately wasted as a consequence of Covid-19?
There is no quick and confident across-the-board answer.
And don’t expect much help from the the frustrated contracts provisions of Part 3.2 of the Australian Consumer Law and Fair Trading Act 2012. In very crude summary, it provides that money paid or payable under a frustrated contract ceases to be payable and, if paid, is recoverable by the recipient EXCEPT where a court or VCAT considers it just to order otherwise.
Note that pandemic-sized exception.
Put another way, the answer as to who is to carry the losses of a frustrated contract is ‘black’ except when a court or VCAT considers that it should be ‘white’ or some shade of grey (or perhaps some chequered-flag pattern for Grand Prix-related events).
This legislation gets more curious still. Its open invitation to litigation appears to have been accepted in Victoria on – wait for it – only a single occasion. That case was Foley v Afonso Building Solutions [2014] VCAT 1640.
In Foley v Afonso a landowner paid a builder a $10,000 deposit on a domestic building contract. It then transpired that the building permit necessary for the project was unobtainable. The owner wanted her deposit back. The builder refused as it was not his fault that the building permit didn’t issue. So the parties went to VCAT.
Senior Member Walker concluded that the contract had been frustrated by the impossibility of getting the essential building permit. He ordered that the owner was entitled to have most (but not all) of her deposit refunded. The builder was permitted to retain the $1800 he had spent on preliminary work (such as drawings and soil tests) but not the $8000 commission he paid the agent who had secured the contract.
The decision is short. It doesn’t mention any authorities or the word ‘restitution’ but the restitutionary flavour is unmistakable.
Presumably Covid-19 will soon ensure that Foley v Afonso is superseded by many more authorities on the consequences of frustrated contracts in Victoria.
Conclusion 1
Covid-19’s frustrations are suffocatingly obvious to most of us. But that doesn’t mean contracts affected by the virus will necessarily be themselves frustrated.
And whatever the answer on first principles to your particular frustration query, beware of the continuing cascade of government announcements and promised regulatory changes that might take your client’s situation beyond a ‘first principles’ analysis anyway.
In these extraordinary times, remember that your clients’ best Covid-19 solutions might not be in the legal textbooks at all.
The unexpected and supervening event of Covid-19 might, for example, trigger the business interruption insurance that your client has forgotten it holds and make the entire frustration discussion unnecessary. Check that insurance.
And while the C-19 maelstrom continues, remember also that the banking industry (see for example this Commonwealth Bank Covid-19 support page) and the laws of insolvency have both been temporarily transformed in recent weeks. (Your clients might have more time and options available than they appreciate.)
Stay safe!
[1] Compare Krell v Henry [1903] 2 KB 740 and Hearne Bay Steam Boat Co v Hutton [1903] 2 KB 683. Both cases involved sightseers disappointed by the coronation’s postponement. In the former case the contract was held to have been frustrated by the postponement; in the latter the contract was held not to have been.
[2] See for example Fibrosia Spolka Akcjyna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 where a pre-war contract that required an English company to deliver machinery into Poland was rendered illegal and frustrated by the outbreak of World War 2.
[3]Codelfa Construction Pty Ltd v State Railway Authority of NSW (1982) 149 CLR 337.
For at least 115 years it has been the law in Australia that where a contract is repudiated the innocent party can recover damages either in accordance with that contract or upon a quantum meruit. Predictably, such claimants have always asked for whichever was the higher of the two available measures and this has sometimes involved shrugging off the contract price as irrelevant.
The seven judges delivered three judgments spanning 99 pages. In a nutshell, they agreed that the contractual measure of damages should be the ceiling on damages and that the former long-standing position is, in the words of Keifel CJ, Bell and Keane JJ, based on “fallacious reasoning … which may give rise to serious mischief”.
In Peter Mann v Paterson Constructions, property owners contracted with a builder for the construction of two townhouses in Blackburn, Victoria. The contract price for the development was $971,000. The work was largely completed and $946,000 of the contract price had been paid before the relationship ended in acrimony with each party accusing the other of repudiation and purporting to accept such repudiation.
Their dispute then went to VCAT where Senior Member Walker held that the owners had wrongfully repudiated the contract, the builder had accepted that repudiation, the contract was at an end, and that the builder as the innocent party was entitled to recover damages calculated by reference to the market value of the building work and labour delivered to the owners. He assessed that value at $1.6 m.
After allowance for the $946,000 already paid, he held that the builder was entitled to damages from the owners of $660,000. Hence the bottom line financially at VCAT was that the owners were liable to the builder for about 165 per cent of the original contract price because of their repudiation of that contract.
The owners appealed unsuccessfully to a single judge of the Supreme Court and then to the Court of Appeal before winning seven judges to nil in the High Court.
Following yesterday’s decision, where a building contract in Australia (or other contract for work and labour done) is terminated for repudiation or breach, damages for breach of that contract will generally be the sole remedy.
What now? The High Court has remitted Mann back to VCAT for its recomputation of the builder’s damages. More than three years after he first heard the matter, that recalculation might be done by Senior Member Walker as the owners’ submission to the High Court that he should not hear the remitter was rejected.
The wash-up? Three thoughts occur to me.
First, the High Court’s decision will be big news for building and construction lawyers, as it overturns a century of established law. But it won’t be a big surprise to those who remember Sopov v Kane [2009] VSCA 141 in which Victoria’s Court of Appeal unanimously expressed sympathy for the owners’ predicament in a similar case but nevertheless found for the builder on the basis that treating repudiated contracts as a ceiling on quantum meruit claims was “a step which the High Court alone can take”.
Second, until yesterday builders and others stuck in unprofitable contracts had a powerful financial incentive to terminate for breach by their counterparty in the expectation that they would be able to reprice their work retrospectively with a quantum meruit claim in the subsequent litigation. That financial escape route has just been soundly shut by the High Court.
Third, the decision is also bad news for quantity surveyors. Demand for their expert evidence as to the ‘as built’ value of construction works is likely to take a hit.
It was probably crucial for the disappointed plaintiff, vast Swiss-British miner Glencore in its continuing tussle with the Australian Taxation Office.
As you might recall from global media coverage at the time, in 2017 millions of documents were leaked from the Caribbean-based law firm Appleby in an episode that became known as ‘the Paradise Papers.’ Appleby specialises in tax minimisation involving tax havens. Its recent clients include Glencore.
Some of Appleby’s Glencore advice and related documentation leaked its way to the ATO which took a very deep interest in it.
This ATO attention was sufficiently embarrassing for Glencore to invoke the High Court’s original jurisdiction and seek an injunction against the ATO retaining, relying upon or referring to any of the stolen Appleby documents relating to Glencore.
The High Court noted that there was no issue that the documents stolen from Glencore’s lawyers were subject to legal professional privilege. But the seven judges unanimously found that this meant only that the documents were exempt from production by court process (eg discovery or subpoena) – it did not necessarily mean that the ATO could be injuncted from using documents which had come into its possession independently of such court processes.
The Court stated [at paras 12 – 13]
Fundamentally [Glencore’s application] rests upon an incorrect premise, namely that legal professional privilege is a legal right which is capable of being enforced, which is to say that it may found a cause of action. The privilege is only an immunity from the exercise of powers which would otherwise compel the disclosure of privileged communications…
It is not sufficient to warrant a new remedy to say that the public interest which supports the privilege is furthered because communications between client and lawyer will be perceived to be even more secure. The development of the law can only proceed from settled principles and be conformable with them. The plaintiffs’ case seeks to do more than that. It seeks to transform the nature of the privilege from an immunity into an ill-defined cause of action which may be brought against anyone with respect to documents which may be in the public domain.
Apart from there not being a cause of action, there was the further difficulty that the cat was already well and truly out of the bag in any event. Para 33:
The relief sought by the plaintiffs points to further difficulties….[including] the fact that the information the subject of the claimed privilege is now in the public domain. In the latter respect the circumstances of this case identify a particular problem were an injunction to be granted. It is that the defendants would be required to assess Australian entities within the Glencore group to income tax on a basis which may be known to bear no real relationship to the true facts.
Ouch. That sounds like there might be a nasty revised tax bill in the pipeline to Glencore.
In happier times the De Lutis brothers built up a Melbourne property empire worth (according to this Age story) $500 million. But now the pair has fallen out.
Younger brother Paul wants his share of the financial pie and is suing older brother Colin in the Victorian Supreme Court. It seems that the pie includes $18 million which has sloshed through various bank accounts in Switzerland, Singapore, the British Virgin Islands and Hong Kong since the 1980’s.
As plaintiff, Paul wants to detail these funds and transactions to the judge now trying the matter but is apparently concerned that his evidence might attract some unwelcome scrutiny from the Australian Taxation Office.
What to do?
Section 128 of the Evidence Act permits a court to issue a certificate which will prevent a witness’s evidence being directly or indirectly used against that witness in a subsequent criminal prosecution. The section is predicated (see s. 128(1)) upon the witness objecting to giving evidence on the ground that such evidence might tend to prove that the witness has herself committed an offence or be liable to a civil penalty.
Paul has already received one s. 128 certificate about an unrelated matter in this litigation. Last week he sought another concerning the itinerant $18 mil.
This week, the trial judge Justice James Elliott refused that application.
In a pithy ruling (De Lutis v De Lutis & Ors [2017] VSC 505) Elliott J observed that in civil litigation a plaintiff is free to prosecute his own case if and how he chooses. As there is no element of legal compulsion in the evidence Paul might choose to give in chief, he can scarcely choose to give evidence of a particular matter and simultaneously object to doing so.
Absent a valid objection to the giving of evidence, a witness has no entitlement to a s. 128 certificate. Hence no s. 128 certificate for Paul concerning his proposed evidence in chief.
Elliott J also observed that the cat was arguably out of the bag anyway. The $18 million had already been referred to in evidence earlier in the proceeding and “… where so much of the subject matter had [already] been disclosed voluntarily, it is difficult to see how this further [proposed potentially self-incriminating] evidence would materially alter Paul’s position.”
The lessons from this? Several occur to me:
Prospective civil litigants in commercial litigation should weigh up the potential longer term ramifications of their evidence. In particular, will they be embarrassed (or worse) if the transcript from a civil trial finds its way into the tax man’s hands? If so, steering clear of commercial litigation might be a prudent way to minimise the risk of a later criminal prosecution.
The risks of having an application for a s.128 certificate refused apply to both prospective plaintiffs and defendants but are probably more pronounced for plaintiffs who are almost by definition volunteering from the very outset to give their evidence. Similarly, different considerations are likely to apply to evidence given by a witness under cross-examination rather than during evidence in chief.
If your client might need a s. 128 certificate, seek it early. Don’t run the risk of having the judge rule that the self-incrimination horse has already bolted. (Also, even an early failed128 certificate application might have forensic advantages given the possibility of such failed objections being retrospectively upheld – see 128(6) of the Evidence Act.)
Finally, any family that has had $18 million lying idle in its various Swiss and Caribbean bank accounts for decades is clearly long overdue for a holiday together skiing in Zermatt or sailing off Barbados. Inter alia, both destinations are likely to be much more entertaining and much less expensive than a protracted intra-family dispute in the Supreme Court.
Since last year’s failed coup attempt against Turkish president Recep Tayyip Erdogan (pictured), his regime has ousted 4,238 judges and prosecutors, purged 95,000 public servants, jailed at least 81 journalists and sought to remove one sitting member from a VCAT domestic building case.
Yes, all extraordinary numbers but let’s focus here on that last and most local statistic. It made it on to the public record only yesterday via VCAT’s decision in Mackie v Republic of Turkey [2017] VCAT 620.
VCAT is currently 25 hearing days (!) into a domestic building dispute. Another 10 hearing days are anticipated. In it, a builder is claiming payment for constructing a house in Toorak Road, Toorak, for the Turkish government. The Republic of Turkey has counterclaimed and also joined the project’s architect to the action.
Things cannot be going well for the Turks because, together with the architect, they used a long adjournment last month to seek an order from VCAT’s president to have the VCAT senior member hearing the case removed from it.
That senior member is not identified in yesterday’s decision. His removal was sought on two alternative grounds.
Evidence in support of the reconstitution application was by affidavit derived, among other things, from approximately 2,000 pages of transcript. The complaints against the member included, among much else, his own statement during the hearing that he had “little experience” in construction law, his apparent unfamiliarity with some building concepts and terminology (such as the difference between a civil engineer and a structural engineer), and a comment during the litigation describing it as “a nightmare”.
Apprehension of bias
The second limb of the reconstitution application was that the member had created a reasonable apprehension that he was biased in favour of the builder.
Evidence in support of this contention was said to include some stern words from the member to the architect’s principal witness about the architect’s repeated failure to give responsive answers in cross-examination, the poor success rate by the architect and Republic’s respective counsel in making objections to evidence when compared to the builder’s counsel’s equivalent run rate, and the member’s solicitude for the health and comfort of the builder’s 74 year-old, laryngitis-suffering witness while giving vive voce evidence.
All of these complaints were in support of a contention that a fresh member should replace the incumbent for the remainder of the hearing. It seems that the architect (who made the formal application) and the Republic (which supported it) were hoping that the current hearing would then trundle on, with the new VCAT member relying for his/her decision in large part on a truckload of transcript and no direct memory of what was said in evidence during the marathon hearing.
Decision – unsuitability
VCAT President Justice Greg Garde’s decision is unlikely to improve President Erdogan’s view of the rule of law as administered by a securely-tenured and independent judiciary.
Garde J dismissed the argument that the member was ill-suited. Among other things, he stated that cherry-picking certain remarks by the member from 25 days’ worth of transcript was not persuasive about the competency of the member when it was conceded that no single remark was, of itself, demonstrative of the member’s alleged unsuitability.
As to the member’s professed inexperience, Garde J stated a VCAT member is entitled to be unfamiliar with industry jargon and concepts. Indeed, members in such a situation should not be bashful about it – they are under a duty to speak up and seek assistance from counsel as appropriate.
Decision – apprehended bias
Applying the High Court’s two-step test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Garde J dismissed the bias argument too.
He stated that VCAT members are entitled to take up issues with counsel and the parties “and express robust views and opinions without prejudgment” and that in this case there was not sufficient evidence that the member did not “apply the same standards to all witnesses or act appropriately to progress the hearing and the determination of the proceeding…. I hold that if a fair-minded lay observer were asked whether he or she might reasonably apprehend that the senior member might not bring an impartial mind to the resolution of the issues and the questions which arise in the proceeding, the answer would be ‘no’.”
Garde J dismissed the application and ordered that the hearing resume next Monday before the same senior member who has heard it to date.
Four thoughts occur to me on this:
VCAT members can be removed under s.108 of the VCAT Act during the running of a case but neither professed unfamiliarity with the subject matter nor a robust approach from the bench will of themselves be sufficient grounds for a successful application.
If you are going to make a s.108 application best make it early. An application too far into the hearing is much more likely to expose the applicant to failure (and potentially grave costs consequences too).
Isn’t it cheering to live under the rule of law where humble builders can take on foreign governments secure in the knowledge that the tribunals of law and fact won’t be distracted in their deliberations by the prospect of mass (or even targeted) judicial sackings?
VCAT Senior Member Robert Davis delivered his decision in the substantive litigation on 25 August 2017. The decision is Mackie v Republic of Turkey & Tectura [2017] VCAT 129. The Republic of Turkey was ordered to pay the builder $693,824.58 and its counterclaim against the builder was dismissed. The Turks did have a win against the architect. It was ordered to pay the Republic of Turkey $119,664.65.
(Presumably the next issue for the builder will be actually collecting on the judgment. Some successful VCAT litigants find this a problematic exercise against even Victorian residents. Registering and enforcing a VCAT decision against a distant authoritarian sovereign state with an elastic approach to the rule of law is likely to prove a challenge indeed.)
ADDENDUM # 2 (2019)
Boris Johnson has also survived President Erdogan’s displeasure. The limerick master became the UK’s prime minister in July 2019 and was resoundingly returned as prime minister at the British general election in December 2019.
ADDENDUM # 3 (2021)
This litigation originally started in the County Court in 2013. In 2014, the parties agreed that it should be stayed pursuant to s. 57 of the Domestic Building Contracts Act 1995. The builder then applied to VCAT to determine the dispute. It then ground on through VCAT, a single judge appeal in the Supreme Court and into the Court of Appeal on the common assumption that VCAT had indeed been the correct jurisdiction. But then the Court of Appeal itself questioned this assumption. In Republic of Turkey v Mackie Pty Ltd [2021] VSCA 77 it ruled that VCAT lacked jurisdiction to hear and determine the primary proceeding because the subject matter was a matter ‘affecting consuls or other representatives of other countries’ within the meaning of s. 75(ii) of the Constitution and VCAT is not a court of the state. It said the VCAT decision should be set aside and the primary dispute referred back to the County Court where the County Court could also determine the question of the costs of all those wasted intervening years in VCAT, the Supreme Court and the Court of Appeal.
(I wonder if this saga will restore President Recep Tayyip Erdogan’s respect for due process and the rule of law?)
Ms Evangelista was succinct and presumably did not need to elaborate.
Mr Boucher was less concise. And, as if the Uniform Law jigsaw needed still more pieces, he accompanied his pronouncements with three “worked examples” of how lawyers are required to provide “single figure” estimates to their clients for the purposes of the Uniform Law.
Look at the examples closely. Identifying a “single figure estimate” in any of them is like identifying a snowflake in a blizzard. Easy. And meaningless.
Nevertheless it seems that Mr Boucher considers single figure estimates are compulsory, even if they are as a consequence contrived, almost certain to be superseded, or premised upon tenuous guesses about the likely course of litigation.
Note particularly paragraph 8 of both Guidelines and Directions. Estimates may be provided as a “range of figures PROVIDED [original emphasis] that the law practice … always gives the single figure estimate of the total legal costs in the matter that section 174(1)(a) requires” [my underlining].
My copy of the Uniform Law contains the following version of s 174(1)(a):
A law practice—
(a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs…
I will give a prize to the first reader who can find in s174(1)(a) the requirement for a “single figure estimate” to which Mr Boucher is referring in his Guidelines and Directions. And not just any prize. It will be a colour, A4-sized photo portrait of either Ms Evangelista or Mr Boucher – your choice.
I have blogged about this silliness before but I was reminded of it at a seminar yesterday on the Uniform Law. Three speakers. Engaged audience. Useful discussion. But beyond the single slide of Linda Evangelista on display, not much clarity.
Since last year’s failed coup attempt against Turkish president Recep Tayyip Erdogan (pictured), his regime has ousted 4,238 judges and prosecutors, purged 95,000 public servants, jailed at least 81 journalists and sought to remove one sitting member from a VCAT domestic building case.
Paul Duggan 