Category Archives: Case by Case

Party Like It’s (Almost) Your Birthday!

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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. 

Intimidating Flatulence in the Workplace

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In a widely reported case, the Victorian Supreme Court ruled that flatulence, in that instance, did not amount to workplace bullying.

There hasn’t been a new fart joke in 40 years and the wide coverage of this case has already led to a race to the bottom by everyone trying to provide legal analysis better suited to page 3 of the Sun with obvious and terrible dad jokes.  It doesn’t feel right to pick such low hanging fruit, so I’m going to play this one straight.

In Hingst v Construction Engineering (Aust) Pty Ltd (No. 3) [2018] VSC 136, Mr Hingst sued his former employer for negligence causing a psychological injury. The negligence focused on a series of events that occurred at work including a number of incidents when his supervisor would deliberately break wind near him. Mr Hingst sought $1.8 million. Workplace bullying, and bullying in general, is amorphous and can range from blatant to innocuous. It brings to mind Justice Stewart’s words who was struggling with an inclusive definition of pornography; “I can’t define pornography, but I know it when I see it“. Fortunately, the Courts have a bit more guidance when it comes to workplace bullying. From the judgment:

9 There is no statutory definition of what constitutes bullying in the workplace. A useful working definition, however, can be found in the reasons for judgment of Osborn JA (with whom Harper JA and Macaulay JA agreed) in Brown v Maurice Blackburn Cashman.[9] His Honour quoted WorkSafe Victoria’s guidance note on Prevention of Bullying and Violence dated February 2003 as follows:

Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.

Within this definition:

Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.

Behaviour includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.

Risk to health and safety includes a risk to the mental or physical health of the employee.[10]

Osborn JA went on to observe that this definition raises two threshold questions:

(i) was there unreasonable behaviour directed towards [the plaintiff], ie behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten a person; and

(ii) if there was, did it occur repeatedly?

Mr Hingst was found to have played along at the time by giving his supervisor the nickname of “Mr Stinky” and sprayed him with deodorant on another occasion.

The Court concluded that if there was a psychological history it was likely caused by Mr Hingst’s dismissal and not the outlined incidents.

The inference is that a reasonable person would not find this conduct to be victimising, humiliating or threatening. It has been left out of most of the reporting for convenience, but each instance will be treated uniquely and this conduct would very likely be considered bullying in future cases.

ACAT’s Missing Powers; Episode 1: The Phantom Jurisdiction

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Many of us grew up on the original ACAT trilogy and may view these new episodes as somewhat of a hollow imitation. But the future waits for no one, time and tide, the young will eat the old, whatever the expression is that means I’m going to do it anyway, so buckle up.

To reminisce, treat yourself to one or all of the original ACAT trilogy first: A New Limit, The Counterclaim Strikes Back and Return of the Enforcement Officer.

SW01_00

ACAT Jurisdiction – Ends at the Border

By virtue of the ACAT Act, ACAT has first jurisdiction in many matters including disputes under $25,000, residential tenancy disputes, fencing and boundary disputes, administrative review, energy and water and mental health assessments. Importantly, for reasons we will shortly discuss, first jurisdiction does not equal exclusive jurisdiction. The enacting legislation for the ACAT purported to set up a system that diverted a large proportion of matters, mostly minor and administrative matters out of the court system and into a specialist jurisdiction.

A recent decision out of the High Court has established some pretty strict limitations on the purported jurisdiction of tribunals all over Australia.  Essentially, that jurisdiction ends at the border, regardless of what the enacting legislation purports to do.

Recently in Burns v Corbett [2018] HCA 15 the High Court held that New South Wales’ civil and administrative tribunal, the NCAT, cannot purport to exercise jurisdiction over residents of other states or territories. The Burns decision effectively confirms Canberra’s status as a powerful city-state only.

Westeraus

Kiefel CJ, Bell and Keane JJ in the majority opinion:

  1.  The first issue in these appeals is whether the Commonwealth Constitution precludes the Parliament of a State from conferring jurisdiction in respect of a matter between residents of different States within s 75(iv) of the Constitution on a tribunal which is not one of the “courts of the States” referred to in s 77 (“the Implication Issue”). If that issue were to be resolved in the negative, the further issue would arise as to whether a State law which purports to confer jurisdiction on such a tribunal in respect of such a matter is rendered inoperative by virtue of s 109 of the Constitution on the basis that it is inconsistent with s 39 of the Judiciary Act 1903 (Cth) (“the Judiciary Act“) (“the Inconsistency Issue”).
  2. The Implication Issue should be resolved in the affirmative. Considerations of constitutional text, structure and purpose compel the conclusion that a State law that purports to confer jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Ch III of the Constitution, and is, therefore, invalid.

The High Court’s reasoning appears to only apply to natural persons and not corporations (Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290).

Howe’s Case and several others have affirmed that the reference in s75(iv) to ‘resident’ is a reference only to natural persons. The ‘great dissenter’, Justice Kirby predicted in 2003 that the narrow definition of natural persons would be proven restrictive over time. In British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30, 72–3 [109]–[110] Kirby J wrote:

The decisions establishing that principle involved a remarkable narrowing of the constitutional language. In my view, it is a narrowing unjustified by the text or the context. In many ways it is reminiscent of judicial holdings in Australia and elsewhere at the same time to the effect that a ‘‘person’’, when referred to in legislation (for example for the purpose of admission to professional practice) did not include a woman. The only justification for such a narrow interpretation of s 75(iv) of the Constitution was the expressed judicial fear about an extension of the jurisdiction of this Court that might result in an inundation of work that this Court could not easily deflect to other courts in the views then held concerning the obligation of this Court to discharge a jurisdiction conferred on it by the Constitution.

…

In a proper case, this Court should reconsider the early determination that corporations, including statutory corporations, cannot be ‘‘residents’’ of a different State for the purposes of s 75(iv) of the Constitution. Self-evidently, corporations are, and were at the time when the Constitution was made, legal persons. They were then, and still are, frequent litigants in the courts. Their existence was contemplated by the Constitution itself. Although in 1985 in Crouch v Commissioner for Railways (Q) this Court declined to reopen its early holding on the meaning of s 75(iv), the decision is open to the strongest doubt and criticism. In my view it is wrong. One day this Court will say so.

Earlier Limitations

Other jurisdictional limits have already been addressed: for example, VCAT had earlier ruled against their own jurisdiction in relation to serving process in foreign countries. In Gluyas v Google Inc [2010] VCAT 540, an Australian sought to bring an action against Google for not taking down an autism hate-blog based out of the United States. VCAT dismissed the application for other reasons but did note specifically that VCAT had no powers to effect process outside of Australia. Regardless of how well the legislation is written, it is likely the same situation here.

Solutions

Victoria presents one interesting solution to the problem. There is a little-known provision in Victoria whereby proceedings can be issued in both a Court and VCAT. The President of VCAT is a Supreme Court Judge and Vice Presidents of VCAT are County Court Judges, so there are already judges who sit in both jurisdictions. Their legislation allows for special appointments whereby a Judge could continue hearing a VCAT case, out of the jurisdiction, and also wear the hat of a Judge.

The ACT position of jumping jurisdictions is somewhat more complicated.

fence jump.gif

Any party anywhere, international or interstate, can still consent to the jurisdiction. However, it appears that the only feasible solution for someone looking to bring an action in the ACT, where one party is interstate, is to bring the action in the ACT Supreme Court. The situation does get complicated though, despite the Supreme Court clearly holding inherent jurisdiction over any ACAT dispute, there is no ability to transfer proceedings. An ACAT dispute can have a question referred to the Supreme Court (s84) and an ACAT decision can be appealed to the Supreme Court (s86). But the Supreme Court would likely have to dismiss the proceedings on the basis that the original process was deficient for lack of jurisdiction.

Filing a matter in the ACAT for a natural person costs $338, filing in the Supreme Court costs $1,669. There is no specialist fee for ACAT referrals or for matters that cannot be started in the ACAT because of this deficiency.

For example, if you have a $2,000 bond, your landlord has unjustly kept it, but your landlord is based in Sydney, then you have no option but to file in the Supreme Court for $1,669.

The good news is that if you are in the right, rule 1722 would mean you are entitled to 100% of costs, as opposed to the ACAT presumption of 0% costs. Of course, if you are incorrect, then a simple bond dispute could lead to thousands of dollars of costs if, as a punter, you happen to get the law wrong.

The ACT is particularly susceptible to this problem given the size of the Territory and the increased likelihood that parties to transactions will be based in NSW or further afield. Essentially, the stakes are hugely raised the second you step into the Supreme Court jurisdiction, which is entirely against the original purpose of the ACAT.

This is a matter for the legislature but if I may,  I humbly propose three solutions:

  1. Create a low-cost filing fee with a presumption for no costs in the ACT Supreme Court to catch those cases that cannot find jurisdiction or where consent jurisdiction is lacking – this one is possibly as simple as allowing for the rules or even a practice direction to state that upon application the Court will apply the rules and practices of the ACAT (+the fee/costs structure);
  2. Amend the ACAT structure to have Supreme Court judges appointed as Presidential Members to create a new field of “two-hat” law, previously not in existence in the ACT (but at least Victoria has precedence to assist);
  3. Two Words: Singular Jurisdiction. Abolish the ACAT. Abolish the Magistrates Court. Everything is the Supreme Court only. We would have singular rules and simply have different levels of judicial officers hearing cases. Members can sit as Registrars when needed, Judges can sit as Magistrates on bail decisions etc. In a jurisdiction our size, there are great advantages to this approach. Massive administrative savings would be realised and the same rules can remain in place to dictate which officer should deal with each case and handle the appropriate costs positions and so on.

Point number 3 requires its own post, but if you catch me at the pub and have a spare hour or two I’ll do my best to convince you of the benefits of a sole jurisdiction. By the way, we will shortly have a big shiny new Court precinct building that would serve a single destination well, but I’ll also be the first to admit that this is a bit of a pipe dream…for now.

The High Court decision in Burns has huge implications for a jurisdiction the size of the ACT and once again I find myself writing about the ACAT facing difficult foundational issues that have existed since inception but are one-by-one coming to the fore, with real implications for those with cause to seek ACAT’s intervention.