Party Like It’s (Almost) Your Birthday!

There are so many themes to choose from for this post! I could go with The Pirates of Penzance because the prosecutor in the case thought it would be a good idea to quote it(!?). Or I could go with The Sound of Music for the song “16 going on 17” and involving a young lady facing peril? But ultimately I think I have to stick with my heart. It’s a tale of the passage of time and how different people interpret it…therefore, as a Nolan-head, I have to run with Inception.

The Associate Justice recently had to deal with a case where the Magistrate and Prosecution, at first instance, agreed that someone who was 17, on the eve of their 18th birthday, was actually 18.

inception cafe

In September 2018, Associate Justice McWilliam handed down a decision on appeal from the ACT Childrens Court (sic).

The Defendant appearing before Chief Magistrate Walker in the Childrens Court (sic) charged with certain criminal offences. The twist on this common tale is that the Defendant was born on 29 February 2000 and that she committed her alleged offences on 28 February 2018, being a common year (non-leap year).

The key question before the Court was therefore whether she had obtained the age of 18 by the time of the offences or not. If she was a child she would remain in the Childrens Court (sic) and if not she would be tried as an adult in the Magistrates Court facing significantly harsher repercussions.

16 going on 17

At first instance, Chief Magistrate Walker determined that the Defendant had obtained the age of 18 and therefore should be tried as an adult. An appeal was brought. Finding that someone is 18 when they haven’t had their 18th birthday may seem like conflated legal conjecture but it does at least have some legs at least.

giphy (1)

Mathematics is a field usually eschewed by lawyers, but usually more from ignorance rather than relevance. Before the Associate Justice, both parties contended that the matter was a simple one of mathematics and that the exercise would be guided by section 149 of the Legislation Act 2001 (ACT):

Section 149 – Age in years
For an Act or statutory instrument, a person is an age in years at the beginning of the person’s birthday for the age.

inception van

Referring to the Magistrate’s decision and quoting the Associate Justice:

17. The magistrate determined that the plaintiff was an adult by applying The Attorney-General v Smith (1985) 39 SASR 311 (Smith), which in turn relied on the earlier authority of Prowse v McIntyre (1961) 111 CLR 264.
The date upon which the offence is alleged to have occurred is the day before the respondent’s eighteenth birthday.  The question is whether the respondent had “attained the age of eighteen years” within the meaning of the definition of “child” in s 4 of the Act on that day.  …
It is clear law that a person attains his majority at the first moment of the day preceding his twenty-first, or under the present law his eighteenth, birthday: Prowse v McIntyre (1961) 111 CLR 264.  The rule is so lacking in rational foundation and is so out of touch with ordinary usage, that I would be most willing, if it were possible, to restrict it to the determination of the date upon which a person attains full legal capacity. I am satisfied, however, that the rule cannot be so restricted.  It is true that the statements of the rule and of the authorities, for the most part, refer to the attainment of the age of majority.  It has been understood, however, as applying to the attainment of any age.  In In re Shurey: Savory v Shurey [1918] 1 Ch 263 it was applied to determine the age at death of a beneficiary under a will who died on the day before his twenty-fifth birthday, the gift in the will being to such of the testator’s three sons “as shall attain the age of twenty-five years”.  Sargant J. formulated the point to be decided in the case as follows: “Does a person attain a specified age in law on the anniversary of his or her birthday, or on the day preceding that anniversary?” That case was cited with apparent approval by Dixon CJ in Prowse v McIntyre (1961) 111 CLR 264 at 271.   In the same case, moreover, Windeyer J, although discussing the rule in the context of the attainment of full age, said: “The rule, is, moreover, not consistent with the law’s method of computing lapse of time for any purpose unrelated to reach an age.” (Italics mine) (1961) 111 CLR 264 at 281. I have reluctantly reached the conclusion that there is no escape from applying the rule to the attainment of any age and for any purpose unless the context in which the expression as to age is used indicates an intention to the contrary.
22.      Sections 11 and 12 of the CYP Act respectively define “child” and “young person” as follows:
Adult means an individual who is at least 18 years old.
Inception ellen.gif
The prosecution also relied upon other definitions in the Legislation Act including the definitions of a “calendar month” (being one month), a “year” (being 12 months) and a “month” being a period beginning at the start of any day of one of the calendar months and ending (a)   immediately before the start of the corresponding day of the next calendar month; or (b)   if there is no such corresponding day—at the end of the next calendar month.
35. The plaintiff relied on simple maths.  Putting to one side 29 February, the anniversary of any other date occurs either 365 or 366 days after the date in question.  To find that the anniversary of 29 February was 28 February would cause the anomaly that the anniversary occurs after only 364 days, which the plaintiff submitted would be an absurd outcome.

The Associate Justice further relied on a friend of the blawg, the Macquarie Dictionary, which defines birthdays as:

1. The day of a person’s birth

2. The time of origin or beginning of a thing

3. The anniversary of someone’s birth or the origin of something.

The prosecution then took flight with the dramatic and ridiculed the defence (appellant) argument as simplistic whilst quoting the deception of the character Frederic from The Pirates of Penzance who was free to leave the pirates once obtaining 21 years old but couldn’t because he only had a birthday every 4 years.

Though counting in the usual way, years twenty-one I’ve been alive,

Yet, reckoning by my natal day, I am a little boy of five!

(W S Gilbert and Arthur Sullivan, The Pirates of Penzance (1879), Act II),

The Associate Justice determined that the legislature, by creating section 149,  clearly intended to cure the mischief whereby someone could be 18 without reaching their 18th birthday.

AsJ’s decision was consistent with  s 37A of the Acts Interpretation Act 1901 (Cth) which provides:

Attainment of particular age
For the purposes of any Act, the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of the birth of that person.

Using AsJ’s words: “it follows that on the proper construction of s 149 of the Legislation Act, on 28 February 2018, the plaintiff was not yet an adult, being someone who was ‘at least 18 years old’, because she had not yet reached the beginning of the anniversary of her birth. It was only on 1 March 2018 that she became someone who was ‘at least’ 18 years old.”

This is all likely a concept that Billy Biceps at Moose would instinctively understand when someone presents their ID but one that only lawyers would consider a point worthy of multiple proceedings and lengthy arguments (and costs!). Good luck to everyone that tries to get admitted to a bar on the eve of their birthday based on an application of the common law.

Fun Fact Round-Up

  1. Koreans count someone as one year old from their birth, not their first birthday.
  2. The Northern Territory has broken with the rest of Australia by confirming the common law test instead of clarifying that you only turn the age on your birthday. On ya NT.
  3. There is no Federal act displacing the common law test, meaning that in recent age, Brennan CJ, Gleeson CJ and, Callinan and Heydon JJ each handed down decisions on the eve of their second last day prior to their 70th birthdays, or as the common law would have it, just barely within their jurisdictional competence. 

Don’t Mess With Adelaide’s Homies

Feral pigeons can be public health pests. They can accumulate wherever there is food and shelter, and can take up residence almost anywhere, including around houses, tall city buildings or schools. As well as being a nuisance and causing extensive damage to property, feral pigeons can also pose a risk to human health.

That statement from the South Australian Health Department would seem to suggest that the SA Government considers that pigeons are a pest that requires control, yet in another installment from the state that keeps on giving, pigeons enjoy more legal protection in South Australia than just about anywhere.

The important caveat on that statement is that the specific protections only apply to a specific type of pigeon, being the homing pigeon.

pigeon typing.gif

(Commercial Lore’s editor-in-chief)

Under South Australia law, it is a specific offence to harm a homing pigeon. Moreover, the law prohibits unspecific ‘interference’ with a homing pigeon. It is not sure what ‘interference’ means, but you can probably hazard a guess. If you’re dead-set on messing with homing pigeons, just kill the thing, don’t interfere with it. Be a criminal, not a monster.

Sure, there are easier ways to break the law – pigeons are probably quite difficult to interfere with – and when you factor in the costs of a defending a charge, it is probably worth directing your efforts elsewhere. Just don’t let any prospective employers or potential romantic partners learn of your misdeeds. They’re probably not going to be OK with it. Ask me how I know…go on…ask me!

Putin Pigeon.gif

The law doesn’t just single out killing homing pigeons as a specific offence. Homing pigeons are also protected from being assaulted or kidnapped.

47—Interference with homing pigeons 

        (1)         A person who—

(a)         without lawful authority, kills, injures or takes any homing pigeon; or

(b)         enters upon any land for the purpose of killing, injuring or taking any homing pigeon without lawful authority,

is guilty of an offence.

Section 47 of the Summary Offences Act 1953 (SA) singles out the fixating fowls as a sub-category of animals deserving of protection beyond the already broad (and much harsher) provision of section 13 of the Animal Welfare Act 1985 (SA) which allows for up to 2 years imprisonment and a $50,000 fine.

The specific crime of killing, injuring or taking a homing pigeon is punishable by a fine of only $250, which pales in comparison to the 2 years imprisonment facing anyone harming any other animal.

home alone pigeon.gif

The law itself is straight-forward but there are a number of further intrigues that make this law somewhat more unique; specifically:

  1. Instead of defining homing pigeons as any pigeon which has been trained to operate as a homing pigeon, the SA law instead defines a homing pigeon as any pigeon with a ring around its legs.

    Now I’ll be the first to admit that I’m not familiar with the practices of raising homing pigeons, but it has to be more specific and more readily identifiable than simply being any pigeon with a ring around its leg.

    There doesn’t even need to be a message capsule – if you like to make your pet pigeon jewellery, get it a leg-ring first. That way, if it gets into any trouble, the police can step in and fine the offender $250.

  2. Upon finding a person guilty of an offence, the Court can instead order the person to pay the replacement value of the harmed pigeon.

    A quick search of gumtree shows that this is likely $6-60, further questioning the need for a specific provision in this regard.

  3. It is a complete defence to harming a homing pigeon if you are a farmer or if you are under the direction of a farmer.

    There is no particular guidance for how far this exception stretches. The test is “cultivated land”. But it is not clear whether growing tomatoes in your backyard allows you to claim this defence. Either fortunately or unfortunately, this exception does not appear to have been tested.

As with many of these bizarre provisions under the Summary Offences Act (Exhibit A, Exhibit B), it is proving impossible to trace the underlying reason behind these exceptions or to find any actual cases where this provision has been tested; which only further confounds the reasoning behind the actual reason for the law.

To stay on the right side of this law next time you are in Adelaide, I would advise that it is perhaps best to restrain from harming any pigeons just in case your target turns out to be a highly trained homing pigeon…unless you’re a farmer, in which case, its game on.

My Single Favourite Judicial Homily

As a history tragic, I am somewhat fond of inspiring political and military speeches. For commercial lawyers, and I say this with an indescribably large level of self-awareness, courtrooms are battlefields and hence judgments are as close to an inspirational war-cry as most will ever hear. That being said, I was recounting the below judgment to a colleague the other day and was shocked that I had not written about it sooner; as it includes my favourite sermon contained within a judgment.

THE BELL GROUP LTD (IN LIQ) -v- WESTPAC BANKING CORPORATION (No 9) [2008] WASC 239 holds a grim honor of being amongst the longest actively heard cases in Australian history occupying 404 hearing days between July 2003 and September 2006. By the time the various appeals were dealt with up to the High Court, it was indeed Australia’s longest ever running case. In the WA Supreme Court matter, the originating process was originally filed in 2000 and the decision was not handed down until 2008. It involved 20 different banks, 7 SC/QCs and numerous other barristers and solicitors.

Without going too deep into the minutia, the case dates back to the acquisition of the Bell Group by Alan Bond in the mid-80s. Bond bought 19.9% and wanted to get around the Acquisition of Shares Code, which would have required him to go public with the acquisition had he bought more. Bond convinced his political allies to use the WA State Government Insurance Commission to purchase another 19.9% and then sell those to Bond. The Bell Group had deep coffers and Bond intended to plunder its booty.

Through other loan agreements, Bond acquired a controlling interest and stripped $1.2 billion from the Bell Group. This landed him 2 years in gaol, the same sentence for disrupting a wedding, and amounted to one day for every $2 million. The incident led to decades of litigation including the above mentioned WA Supreme Court case.

I don’t intend to get into the complexities of this fascinating series of judgments as it is so long and complex that it makes Ken Burns look like Tommy Wiseau.

The politics are worth getting into though. Briefly, they involve backroom deals between Joe Hockey as Treasurer and the WA government agreeing to not press the ATO’s claim to $300m to allow it to flow to WA; seemingly a shady agreement between the two Liberal governments as compensation for a perceived slight over the allocation of GST distributions. Solicitor-General Justin Gleeson SC eventually persuaded Hockey that not pressing the Federal Government’s claim would likely be tantamount to neglecting his responsibilities as ministers (my words). In 2016, the then Assistant Treasurer, Kelly O’Dwyer, relied on Gleeson’s ongoing advice to intervene against a WA law that would have acted to strip the assets from the Bell Group in WA’s favour instead of following the normal preference allocation in insolvency. About one month later, Attorney-General George “Bunsen Honeydew” Brandis gave the unprecedented direction that the government solicitor was not to give advice to the government without clearing it with him first. This snowballed into a showdown that eventually led to Gleeson’s resignation, whose resignation letter rejected “each and every attack and insinuation” and did “not amount to a withdrawal of any position I have taken in relation to matters of controversy between us”. Anyway, its heady days we live in and you know how Ask Jeeves works; so you’ll look into it if you care.

Justice Owens was not aware of the political intrigue that would follow after his decision but his judgment does give an insight into the exasperation one must feel after 404 days of a hearing. The UWA alumn opens his judgment and my favourite commentary:

The Bell group of companies had a splendid radiance in the commercial life of Australia during the 1970s and early to mid-1980s. The group also had aspirations to international prominence. It was a favourite of the stock market and had accumulated (at least on paper) a relative fortune. But as the Bard so wisely remarked: ‘You fools of fortune, trencher-friends, time flies’. By the early 1990s fortune, friends and time had flown. This litigation is a result. It is a dispute of Brobdingnagian proportions that emerges wraithlike from the still-smoking ashes of the late 1980s: an unfortunate period in this State’s business and political history.

Now this is where you’re lucky to have me and this is where I’m lucky to have ctrl-f, because what follows is 9,760 paragraphs of imbroglio and entanglement. After such a “Brobdingnagian” judgment and hearing, the exhausted Owens J closes out his judgment:

I am not so naïve as to believe that the handing down of these reasons will mark the end of the litigation. But stranger things have happened. It is still not too late for the parties to put an end to this saga by a negotiated settlement, guided (perhaps) by the findings I have made. If formal judgment is never entered, or of there is a consent judgment on negotiated terms (whether or not they accord with what is contained in these reasons) I will be the last person to complain.

Whatever the parties decide to do from here, my role in the litigation will come to an end in the near future. Selfish though it may seem, for me that is the primary concern. I will try to engender sympathy for those who come after me: but I make no promises.

From time to time during the last five years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeast-based substance. It will most certainly involve a complete avoidance of making decisions and writing judgments.

For the moment, in the words of Ovid (with an embellishment from the old Latin Mass): Iamque opus exegi, Deo gratias.

An oubliette is a gaol cell with the entrance in the ceiling, sempiternal means eternal and unchanging and a nepenthe is a mythical Greek drink so powerful that it banishes sorrow and eases grief.

Iamque opus exegi, Deo gratias.  –  And now I have finished the work, thanks be to God.

Justice Owens retired immediately after handing down his decision.