Category Archives: Uncategorized

Forever Hold Your Peace or Face Two Years Imprisonment

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It’s not the greatest secret in the legal world that many jurisdictions are slow to repeal outdated legislation. Likely owing to the fact that the world is only 6000 years old, most of these crazy old laws are based on religion.

It is illegal to disrupt a wedding or any other religious ceremony in South Australia.

The Summary Offences Act was enacted in 1953 and is patient zero for dopey South Australian laws.

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Under s7A of the Act, it is illegal to disrupt a religious ceremony including weddings or funerals. The section creates an offence for disrupting a ceremony regardless of the person’s intent.

S7A(1)(a) creates an offence for disrupting a religious ceremony, whilst s7A(1)(b) creates an offence for disrupting a ceremony in a way that is designed to be offensive. This would suggest that an offence under s7A(1)(a) is intended to cover all behavior that in any way disrupts a wedding. The creation of an absolute liability offence is recognised as generally requiring explicit language from the legislature due to the serious implications, but nonetheless, the language remains open to find this.

This is potentially why the South Australian rom-com movie industry has never taken off.

Mrs Bouvier!

The craziest part is that I haven’t gotten to the crazy part yet. The Act may have been created in 1953 when all those Australian beaus were returning from the end of the Korean war, but section 7A was only added in 1992.

In 1992 Cartoon Network was created, Bill “eating ain’t cheating” Clinton was sworn in as President and South Australia outlawed disrupting weddings. There is no doubt in my mind that the three are closely connected.

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During the Christmas shopping season in 1997, Daniel Pfeifer wore a Dead Kennedys’ t-shirt with the logo “too drunk to fuck” whilst walking around the Adelaide shopping centres.

too drunk.jpegMr Pfeifer was charged under another section of the Act relating to general offence caused in public places, but the Court considered it similar to s7A and discussed that a mental element must be read into the act by implication.

The question remains unsettled, which is unfortunate for our purposes, but probably fortunate for South Australians. I could not find any instance of definitive judicial instruction on just how extreme the section could be applied. I guess the SA constabulary really needs to become a whole bunch more prescriptive before we get some good guidance.

An offence under s7A carries a fine of up to $10,000 or 2 years imprisonment.

Does it Matter? Identifying Parties Using ACNs and ABNs

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Australian Business Numbers (ABN) and Australian Company Numbers (ACN) are often used interchangeably in legal proceedings. I attribute this to the fact that most lawyers on the local circuit are innumerate (author included) and their eyes glaze over as soon as they are presented with anything that an accountant may have ever touched.

dr brule

ABNs and ACNs

An ABN is an identifier issued by the Australian Taxation Office and is issued to every entity hoping to engage in business all the way from sole trader to partnership to corporations. An ABN is issued under the A New Tax System (Australian Business Number) Act 1999 (Cth).

An ACN is an identifier issued by the Australian Securities and Investments Commission (ASIC) and unlike an ABN is issued only to companies.

Well that was easy

Yep, simple right? You know I wouldn’t set you up just to rip the rug out from under you right? Well, wrong on both counts.

As far as process documents go, ACNs should be used when they exist unless the company is being sued as a trustee. In any event, the Corporations Act 2001 (Cth) does allow for leeway. Section 1344 of the Corporations Act allows for companies to be identified by either their ACN or ABN when required. As businesses don’t necessarily have ACNs this essentially means that an accurate description with either ABN or ACN will be sufficient for court documents.

Pro tip: An often ignored aspect of suing under an ACN is that the process is supposed to be accompanied by an affidavit attaching a search of the ASIC records. This is required by rule 2.4(2) of the Corporations Rules incorporated in Schedule 6 of the Court Procedures Rules 2006 (ACT).

Wait, that’s still pretty easy

Yep, that is unless you’ve met my friend the Personal Property Securities Register (PPSR).

In January 2017, a leasing finance company lost a $23m ore crusher all because they identified a company with its ABN instead of its ACN.

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In 2009, the Australian Personal Property Securities Act 2009 (Cth) was passed. The act set up a register of security interests that was designed to simplify the registration and identification of security interests.

The act has not simplified things. Instead, we are now almost a decade into a post-apocalyptic hellscape ruled over by technocrats and bad bond villains (As far as registering security interests goes that is). Errors are common and the scheme is still poorly understood even by those who have studied it extensively.

Catch me if you can

In the matter of OneSteel Manufacturing Pty Limited (administrators appointed) [2017] NSWSC 21 concerned Alleasing, a leasing finance company, seeking to recover their $23m asset and prevent it from being applied by the administrators for the benefit of all of Onesteel’s creditors.

Alleasing had registered their interest under Onesteel’s ABN and later corrected it to the company’s ACN but only after the administrators had been appointed.

The Court was required to consider whether using the ABN created a “seriously misleading” defect as set out in section 164 of the PPSA.

Alleasing attempted to rely on section 1344, set out above, to allow them to use either identifier, but this was swatted away as that provision only applies to laws administered by ASIC, which the PPSA is not.

The Court found that using the wrong identifier was a serious defect as anyone searching the register using the ACN would not be able to identify the relevant security interest. In the case of Onesteel, the defect didn’t cause prejudice to any creditors or the company, but the defect remained nonetheless.

Alleasing also sought to rely on the Corporations Act (s588FL) to extend their time to amend the registration, but the property had already vested with the administrators so it would not be possible. The crusher was available for distribution to all of the creditors of Onesteel and Alleasing would simply have to wait in line with everyone else.

As with all things PPSR, this, of course, is not a consistent or clear position, even when the same judge is involved. In 2013, in Future Revelation Ltd v Medica Radiology & Nuclear Medicine Pty Ltd [2013] NSWSC 1741 the same defect was found to not be serious and the property was returned to the claiming party. The common thread though is how easily the interest can be identified despite the defect.

 

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.