Category Archives: Practice Makes Perfect

Practice and Procedure Notes

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. 

Apologies Without Fault are Totally Legit

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How do you get a Canadian to apologise? Kick them.

It’s a stereotype that Seppos love to trot out in derision (although light-hearted) of their northern neighbours; Canadians love apologising.

If I can be so bold as to speak for the rest of the world, the jokes about Canadian apologising are tired. Most people value the civility of an apology and its role as a social lubricant. I’d certainly much rather reside in a society that apologises too much as opposed to the stereotyped American individualistic approach, which can crudely be summarised as telling people who cross you to self-fornicate.

Imwalkinghere

Most Canadian Law Ever

There was significant coverage and again light-hearted derision when the Ontario legislature passed the Apology Act in 2009. It seemed so perfectly colloquially and quaintly Canadian. “Canadians love to say sorry so much we had to make this law”.

The act was passed to deal with an uptick in civil cases in their courts that were decided on apparent admissions of liability relating to apologies offered at the time of the incident. This is not a unique problem for Canada, as I’ll deal with shortly, but it did strike a particular cultural nerve. Punishing people for apologising when they may not have been liable was a threat to the entire Canadian way of life. There was a fear, as there is constantly in Australia, that they were overly legalising our everyday interactions and becoming too “American”; shorthand for litigious.

Sueeveryone

The act did not apply universally and the largest exception is for apologies made in the course of the proceedings. The act was designed to operate more to protect members of the public from accidentally admitting liability in instances where they were not aware of the possible interpretation of their chosen words. It should be noted that most other Canadian jurisdictions have similar laws, as do many other parts of the world.

Section 1) “apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.

Ontario made it safe to continue apologising to everyone in most circumstances regardless of whether they’ve just hit your dog or if you’ve just merked them in ice hockey…again.

sorrysorry

 

Apologising: The Australian Way

The ACT has had laws in place via the Civil Law (Wrongs) Act 2002 (ACT) which have the effect of preventing apologies being construed as admissions of liability. NSW passed similar legislation around this same time but the two remained the outliers in Australia for adopting this approach. ACT and NSW were mostly addressing policy concerns relating to apparent admissions made by insured people that may later affect the rights of their insurer to recover, as opposed to some deep-seated cultural crisis.

Effect of apology on liability etc

(1)     An apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person—

(a)     is not (and must not be taken to be) an express or implied admission of fault or liability by the person in relation to the incident; and

(b)     is not relevant to deciding fault or liability in relation to the incident.

(2)     Evidence of an apology made by or on behalf of a person in relation to an incident claimed to have been caused by the person is not admissible in any civil proceeding as evidence of the fault or liability of the person in relation to the incident.

In Hutchison v Fitzpatrick [2009] ACad TSC 43, two Rugby spectators and old friends had a barney and the one who came off a bit better had refused to visit the other in hospital or apologise on the advice of his solicitors. Master Harper expressed regret at this advice:

 the defendant would not have been placing himself at risk by visiting the plaintiff or proffering an apology to him. If solicitors are still advising their clients not to apologise and not to visit or telephone or write to people who might sue them … this would be regrettable.

Sorry, not sorry.

Outside of the legislative approach, the common law has always distinguished between apologies, admissions of guilt and admissions of fact.

As noted above, many of the Australian cases that concern apologies are in the insurance realm. Most insurance contracts have a clause that can leave a person unprotected if they make an apology or admission of liability (Terry v Trafalgar Insurance [1970] 1 Lloyd’s Rep 524). Legislation that dictates that an apology does not constitute an admission goes a long way to dealing with these problems.

The High Court has restricted the impact of apologies, affecting all jurisdictions whether they pass legislation or not. In the 2003 case of Dovuro Pty Ltd v Wilkins, canola farmers claimed a loss caused by the supply of contaminated seeds. The supply company issued a media release that contained an apology prior to any litigation. The media release and a further follow-up letter made full apologies expressing regret and also admitting that the company “failed in its duty of care“. Now, why a sophisticated client (company) made such a legally dangerous series of statements is bewildering, but so it goes. The company would have been protected under the ACT and NSW legislation regardless, but elsewhere it would depend on the circumstances of each case.

The High Court (save for Kirby J…of course) agreed with the position that admissions that include legal conclusions cannot have the effect of creating liability for negligence if it did not otherwise exist.

…[c]are that needs to be taken in identifying the precise significance of admissions, especially when made by someone who has a private or commercial reason to seek to retain the goodwill of the person or persons to whom the admissions are made…The statement that the appellant “failed in its duty of care” cannot be an admission of law, and it is not useful as an admission of failure to comply with a legal standard of conduct.

The Importance of Apologies

In 2014, the Australian Law Reform Commission (ALRC) recommended that all jurisdictions across Australia should amend their laws so that apologies are not considered to be admissions of guilt.

The ALRC went further than the Ontario analysis and emphasised several other positive benefits from preventing admissions from being construed as admissions of guilt. There were benefits identified for not only the minimisation of litigation and therefore reduction of stress on the courts but also the personal well-being of those who perceive themselves as having been wronged.

In defamation and breaches of privacy, an apology may have a particularly beneficial effect on the well-being of “victims”. The Telecommunications Ombudsman submitted to the ALRC that they find apologies can:

  • diffuse tension and create common ground between opposing parties
  • foster constructive discussion and even conciliation between parties
  • alleviate injury and distress caused to aggrieved parties, and
  • reduce the length and severity of disputes.

The ALRC further found that in medical negligence cases, apologies (not court-ordered apologies), can have psychological benefits to plaintiffs.

Codicil

The ACT seems to have hit the right balance.

All empirical analyses seem to confirm that limiting liability from apologies has a wide range of benefits in both a legal and societal context. Associate Professor Prue Vines from Sydney Uni, perfectly summed up the dilemma in the title of her article on this issue (without dismissing the value of the body of her article); apologies in a legal context could be “Cynical Civility or Practical Morality“.  As Prof Vines concludes, differentiating between genuine apologies and cynical gambits to limit liability ignores that only the genuine apology gets punished if we remove the protection. As La Rochefoucauld said: “hypocrisy is a tribute vice pays to virtue.” I’d rather live in a society where apologies are offered too often instead of too infrequently, regardless of the intent.

 

ACAT’s Missing Powers; Episode 6 – Return of the Enforcement Officer

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In Episode 4 we dealt with the ACAT’s new civil jurisdictional limit whilst Episode 5 covered the inability to deal with a vindictive/tactical counterclaim. The ACAT’s legislative hamstringing does not stop there however and in episode 6 we face the difficulty of enforcing an order of ACAT once you are able to obtain one in your favour.

The enforcement process is notoriously difficult and cumbersome in any event. I often have conversations with clients that go something like “But I have a court order in my favour, why can’t we just get paid now?”, “It’s not that simple”. Some forms of orders are much simpler than others. A money order from the Supreme Court is much easier to enforce than say an order to vacate premises made by ACAT.

In a recent case, the ACAT determined that a man was not entitled to continue living in his deceased ex-wife’s house and duly made an order for his eviction. The Trustee for his wife’s estate attempted to execute the orders and could not directly enforce orders of the ACAT. So he registered the order in the Magistrates Court in an attempt to have the order enforced through those court processes. This is the normal course of enforcing ACAT orders as the Magistrates Court holds coercive powers that ACAT does not. The Magistrates Court could for example order an employer to re-direct wages or to seize bank accounts. Unfortunately, they and the ACAT, don’t have the power to make orders relating to the possession of real property (a house), and the Trustee was required to have his application transferred to the Supreme Court.

Finally, after a delay of many months, the Trustee was able to obtain a valid order to enforce the ACAT judgment. This was probably small consolation for someone who thought their legal struggle was finalised a long time before.

The judgment sums it up nicely:

13. Section 22 of the ACAT Act gives the ACAT, in relation to civil dispute applications, “the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, Pt 4.2 (Civil jurisdiction).”  That jurisdiction is described in s 257 of that Act as jurisdiction to hear and decide “any personal action at law”, though, of course, with a monetary limit – $10 000 in the ACAT: s 18 of the ACAT Act; $250 000 in the Magistrates Court: s 257 of the Magistrates Court Act

…

34. Unfortunately, however, the Magistrates Court has, as noted above (at [29]), no jurisdiction to make an order for the recovery of possession of land.  See r 2440 of the Court Procedures Rules 2006 (ACT). Any such enforcement must to be undertaken in the Supreme Court.

…

37. It is not clear whether the Registrar was relying on the dispensing powers under r 6 of the Court Procedures Rules or relying on the provisions of r 6461 which permit informal service to be accepted as service for the purpose of Pt 6.8.

38. Because there was some doubt as to whether the order of the ACAT was directly enforceable by this Court, the Supreme Court Registrar also directed Mr Kaney to issue an Originating Application seeking an order for delivery of possession of the Property. No doubt the order of the ACAT would have been strong evidence in support of such an application.

To show the gaps in the implementation of the ACAT, I had to recently bring it to the attention of the  Justice Directorate that the Supreme Court didn’t even have a specific filing fee for the filing of orders for enforcement. We would have had to pay the full fee for commencing new proceedings (~$3000); a situation now rectified.

As a creature of statute, the ACAT was always going to have trouble with dealing with certain jurisdictions and enforcing certain orders. For example, practitioners will regularly blush at attempting to convince a Magistrate that they may hold the inherent powers of the Supreme Court when the Magistrates Court legislation is found to be lacking. But given that the ACAT enabling legislation was specifically crafted to give ACAT exclusive jurisdiction over residential tenancy disputes, one would think that it would be prudent to give them the power to actually make enforceable eviction orders.