Category Archives: A Brief History Of

My Single Favourite Judicial Homily

Posted on by

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.

Sanctuary; An Inquisition

Posted on by

San Francisco, New York, Chicago, Philadelphia and lots of other major (and literally hundreds of minor, some 440) US cities are promising to remain “Sanctuary Cities” in the face of El Presidente Trump and his enforcement of the actual US immigration laws. All being a Sanctuary City actually involves is local police (under the control of the city Mayor) being directed not to cooperate with federal immigration authorities in ways such as passing on information to the federal authorities which, with the limited immigration capabilities, means they are essentially protecting their Citizens even if they’re bad hombres. The Supreme Court has been quite clear in protecting the rights of municipalities to reject federal authorities if they are compelled to cooperate. (Printz v United States)

giphy

The term first came into the popular US lexicon in the 1980’s when cities across the US pushed back against the deportation orders of people fleeing vicious civil wars throughout Central America. [Editor’s note: Tom don’t get weird and political about who was funding half of these civil wars in the first place] The move by the municipalities was largely in response to hundreds of Churches and Synagogues offering those people sanctuary and creating a political movement that many cities were quick to respond to.

Origins of Sanctuary

As you may guess, the word sanctuary holds religious beginnings, and as always, from ancient Greece and Rome. Sanctus was Latin for holy or sacred and is the root for a number of other words such as Sanctum (16th C Hebrew translated from Greek translated from Latin), Saint (12th C French) and STD which is exactly what you were all thinking being Sacrosanctae Theologiae Doctor or “Doctor of Sacred Theology.”

Sanctuary was originally for a person who had fallen foul of the authorities and was a mechanism that allowed that person to head to holy ground to seek protection from the state authorities. This didn’t need to be a church or cathedral and was often any holy ground which both religiously and politically was considered out of the reach of the state. The rules were not universal though and the individual treatment was often up to the person in charge of each site.

I Am My Own Sanctuary and I Can Be Reborn As Many Times As I Choose.
– Lady Gaga
Sanctuary Gif

For example, the time someone could spend in sanctuary was almost always somewhere
between 37-43 days, being the duration of the period of Lent. The difference occurred depending on whether they counted every single day between Ash Wednesday and Easter Sunday, or excluded every Sunday (because that’s a Holy Day already) or whether they think Jesus’ Ministry began on Good Friday or Easter Sunday.

During that period the person could not leave the grounds and their friends would spend that time raising money, bringing them food/ale or trying to petition local officials. A claim of sanctuary for example could be for a financial debt, so you would then have 37 days for your friends to raise the money. Also depending where you were, the Church didn’t always look after you that well, and you would need your friends to…you know…feed you or whatever.

Sanctuary was often a safety valve against the violent society. When sanctuary was at its most popular 13-16th centuries, violence was high and property-ownership was low. Violent crimes were a regular part of society and often the punishment for a crime would be restitution in property. The Germanic Weregild and its Celtic equivalent placed this at the forefront. Were (like Werewolf) is Man, and Gild is payment/debt, so the modern equivalent is ManYield. Every being and item had a value and if you broke/stole/killed then the equivalent would have to be paid and if that couldn’t be done then the person would face the authorities. As a side note, the Romans had a similar system but, super importantly, distinguished between manslaughter and murder, which the Germanic and Celtic systems didn’t, but this was changed in the 12th C as the Church sought to bridge a gap between their Latin law and local custom laws.

Use of Sanctuary

Whilst records are scant, Sanctuary was used for a number of reasons including debt avoidance, political exiles, justice avoidance and sometimes to get out of unwanted marriages. When Edward IV died, his wife Elizabeth took the children and took sanctuary at Westminster Abbey with so many possessions they had to knock holes in the walls to make them all comfortable until the political upheavals died down.

Durham Cathedral in England was the Trump Towers of sanctuary sites in Plantagenet England. Unlike most sites, if you reached the Sanctuary Knocker on the Durham cathedral, the monks would emerge, drape the transgressor in a cloak with St Cuthbert’s gold cross and allow them access. It was said that no one could actually ring the Galilee bell by banging the knocker as it was a heavy, metal knocker with the face of a demon-lion with human legs coming out of its face being devoured by serpents as if they were being ripped apart in hell, a reminder that sanctuary was not needed for the truly holy. DURAHAM PAGE 1So instead most people would simply grasp the knocker and scream “SANCTUARY”. If you made it, you were given food, ale, clothes, a bed (HUGE deal in those days) and be given 37 days sanctuary before you had to hand yourself over to the authorities or accept exile from England under the protection of the Church. This really speaks to the political power of the Church in general and specifically the power and funding that Durham Cathedral could draw as a northern centre of the Church away from the otherwise southern-England dominated scene. In fact, Durham itself, along with Chester were sanctuary counties, but if you committed a crime within that county you still had to level-up and find a holy site, within the holy county.

 
In 1471 King Edward IV famously attacked a church to seize a rival who was claiming sanctuary and had him beheaded. Henry VIII abolished sanctuary for some crimes like treason and in 1623 that beautiful Scot, King James I abolished sanctuary for all other criminal offences. William III finished the job in 1697 and abolished sanctuary for civil offences. Sanctuary no longer had any legal basis but the Church still held massive political power but this would usually only delay justice, reflecting the evolving ideas of the role of the state was in law enforcement.

Modern Era

Sanctuary still exists and is often observed around the world including in Australia, but the fact it is observed is superfluous as it no longer has any legal effect.

The closest thing to true sanctuary currently is political sanctuary offered by embassies and states, which isn’t too far from the power the Church had in the 13-16th centuries. Edward Snowden, Julian Assange and Vladimir Petrov would likely have sought sanctuary in their local church if they lived in an alternate universe.

Etymologically speaking, the term sanctuary has evolved from a word synonymous with a guilty person seeking God’s justice over that of the State, to a term that means someone escaping an unjust persecution or overzealous prosecution. As a general concept, the idea is fascinating, it was a formal recognition that law and order was not an absolute concept and the power of the formal state needed a safety release valve. Just because something was legal or illegal did not make it just. I’m not even talking about the Rosa Parks or, screw it, Ruby Ridge, situations. If you’ve ever sped because you believe that 110kmph is totally arbitrary on a flat road or have smoked a doob because, whatever, then you have accepted that state based law is not the infallible object it is presented as.

 

Usufruct – Not A Pokémon

Posted on by

Every now and then a vestige of the past pokes its head up in correspondence or pleadings and my reaction is usually either “Hey, good for you…nice word!” or “…tosser…”.

In this instance I chose neither option and instead turned to Google so I could Bing the word in order to know which reaction was appropriate.

What is Usufruct?

Usufruct is a term from Roman Law that is the right to use someone else’s property as long as that use does not destroy or deplete the property. Usufructuary rights can be granted individually or to groups such as a timeshare arrangement where each individual member of the group can use the house seperate of the other members but holds an obligation not to damage the house.

Usufructuary rights can be granted for any amount of time such as a life estate in property, where ownership never changes hands but that persons right to use the property is irrevocable for the term of their life.

As opposed to ownership rights the usufructuary cannot sell (alienate) the property but under some circumstances they can sell or lease their interest. The usufructuary is able to sue for relief if their rights are infringed by the owner or otherwise.

Origins

Usufructory: Usus = a use. Fructus = Fruit.

The Latin term meant literally that a person was entitled to a use of and the fruits of property or fair use and enjoyment, which should sound similar to anyone renting a property. Roman Law distinguished between usus and abusus; which was the right to sell, give or destroy property, as is usually associated with true ownership.

There were several different types of usufructuary rights including fructus industriales such as crops growing on someone’s land and is similiar to fructus naturales such as a river running through property or the naturally inhabiting wildlife. The Romans also extended fructus naturales to the human slaves which naturally came with the property, because of course. Other usufructuary rights included fructus civiles such as rights which were legally occurring like loan interest. Even more:

  • Fructus consumpti – the right to consume recurring fruits which can be consumed without destroying the means of production, such as an apple off a tree.
  • Fructus extantes – a general term for fruits which cannot be consumed such as the right to harvest crops, but harvested only to deliver them to the owner. A right to mine land on behalf of the owner for a fee for example, like a contractor.
  • Fructus pendentes – fruits not separated from the means, such as the right to apples only once they fall from the tree but not whilst they are Fructus pendentes (pending fruits).
  • Fructus percepti – the opposite of pendentes, being the right to harvest the fruit and retain.
  • Fructus percipiendi – fruits which have not been produced but should have. Keeping with the apple analogy, buying the right to trees and the trees don’t produce fruit. This would create a right to recover the equivalent that should have been produced.
  • Fructus separati – fruits separated from the object which produced them (e.g. berries gathered from a tree)

(Walter G Robillard, Browns Boundary Control and Legal Principles, 6th Edition, CTI Reviews, online)

Usufructuary rights is one of the oldest legal principles in existence and was recorded in both the Code of Hammurabi the Law of Moses. The Law of Moses created a charitable usufructuary right where landowners would leave a small percentage of their crop unharvested for the collection and use of the poor.

What is it now?

There remains types of usufructuary laws in Australia, but they are more commonly known by other names such as life estates or certain types of resource leasing.

Dickerson v The Grand Junction Canal Company, 9 E. L. & Eq., 520 for example dealt with a landowner having rights to draw water from a stream. The question arose as to whether that right extended to a subterranean water course. As the usufructuary rights related to riparian rights (water) it was decided that the right to a subterranean course must naturally flow (pun intended) to the legal rights holder of the surface stream, whether those rights are total or usufructuary.

The idea of usufructuary has also been used in political philosophy and organisation such as usufructuary rights evolving in Europe as a version of collective ownership. Marx in Capital (ch 27) discussed the destruction of the traditional agrarian community farming during the late fourteenth and early fifteenth centuries towards a newer, more capitalised model of complete ownership and servitude:

“The vast majority of the population was made up of […] free peasants cultivating their own lands, regardless of the feudal obligations that were attached to their rights of ownership. […]. As for day labourers, “as well as their wages, they were given a concession of at least a four-acre field; […] in addition, along with the peasants in the strict sense of the term, they enjoyed the usufruct of communal property, where they could graze their cattle and provide themselves with wood, turf, etc. for heating.”

Léon Bourgeois in his book Solidarité takes the idea in the direction of a general duty to act in the interest of future generations in all regards including politically, culturally, environmentally and so on, evoking more of a stewardship model of collective action:

“It was for the benefit of all those called to life that those who have died created this capital of ideas, forces and aids. Consequently, it is for the sake of those who will come after us that we have inherited from our ancestors the responsibility for paying this debt […] Each generation that follows can truly consider itself to be a usufructuary of this inheritance: it only has the right to hold on to it on condition that it preserves it and faithfully passes it on.”