Tag Archives: case by case

Do Australian Courts Speak Australian?

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The year is 1981, Peter Weir’s Gallipoli is released, the 4 millionth Holden rolls off the production line and a funnel-web spider vaccine is used for the first time. Oh and also Shaddup Your Face spends 8 weeks at number 1 on the Aussie charts. Australia is coming into its own and the cultural cringe we held for so long is starting to fade.

Since its founding, Australians were grappling with a sense of identity. The historian John Hirst, who passed away earlier this year, in his book Sense & Nonsense in Australian History described the interbellum Australians as “More British than the British”. This issue with identity continued through the 50’s and 60’s summed up by the fact that even Menzies considered himself “British to his bootstraps”. 

The publication of the Macquarie Dictionary in 1981 saw the first time that Australian English was recognised as a seperate dialect worthy of being recorded as distinct from American and British English.

Cutting the Umbilical Cord

Until the Australia Act 1986 (Cth) effectively severed the remaining points of appeal to the UK Privy Council, we were bound to British precedent and ultimately to their norms and to their language. British courts naturally favoured the Oxford English Dictionary, the same way our American cousins favoured Websters and each considered these indigenous dictionaries as the authorities on their dialects.

Susan Butcher, the editor of Macquarie, was kind enough to provide some background on the role of the Macquarie Dictionary in our society and specifically in our courts. “Australian courts, like the rest of the Australian community, were slow to understand that Australian English was an independent variety of English which had developed from transplanted British English but which was now different in many ways.  For a long time we maintained the fiction that we spoke and wrote British English.  It was not until Macquarie Dictionary was published in 1981 that people could grasp the nature of the new variety that had developed here.” 

We were forced to, as a society, make a deliberate transition not only recognise Australian English, but actually embrace it. In Hai v The Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, Justice Kirby chose to interpret the Convention relating to the Status of Refugees (1951) by examining the definitions contained in the Macquarie Dictionary treating it as the starting point of interpretation in Australian Courts. Kirby J noted that the meaning of the terms at the time of the convention must be interpreted along with the general evolution of language, including the Australian evolution (62).

Does Bathe mean Swim?

Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876 saw the Federal Court examining the question of whether Mr Kuzmanovski had won $100,000 when his lottery ticket matched the word “Bathe” with a picture of a man swimming. The question to be answered boiled down to was whether doing a few freestyle laps counted as bathing, as understood in Australia.

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The Court examined the definition in several dictionaries including the Macquarie Dictionary which provided as a second option for “Bathe” as “Chiefly British: To swim for pleasure”. Some dictionaries agreed others disagreed. Justice Rares ultimately determined that he was not bound to any definition and could rely on his understanding of an ordinary and natural meaning. Rares J did cite in obiter the precedence that the Macquarie should be authoritative noting “in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at 506 [33 par 3] Mason P had described it as the “most authoritative Australian dictionary” following what Kirby P had said in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 553.”

Mr Kuzmanovski was successful in showing that “bathe” in an ordinary and natural meaning of Australian English could mean swim and more so he was awarded indemnity costs based on an early offer to settle.

What’s the Difference?

As a collection of Australian English, the Macquarie Dictionary’s mission is to simply record our dialect. This is in stark contrast to the origins and missions of Websters and Oxford. Noah Webster deliberately set out to differentiate American English by making style and spelling choices and imposing them (including trying to change “soup” to “soop” and “believe” to “beleev”). Meanwhile the Oxford’s mission was to publish the most correct definition regardless of common usage.

Apart from uniquely local terms, one quirk to note from the Macquarie Dictionary is its preference for the suffix “ise” instead of “ize”. This reflects a uniquely periodic understanding of the English language originating from how the language existed at the time of settlement and continued common usage. Most people conflate “ize” as being uniquely American, but the Oxford dictionary prefers “ize”, noting the Greek origins make this more correct, despite “ise” being the preferred form amongst the British public.

The Macquarie Dictionary does not actively seek to advocate its role as the guardian of Australian English but does do some helpful prodding along the way. In the 1990’s the Macquarie Dictionary approached the Directors of Education and successfully lobbied for their spellings to be considered the standard for education, or more recently sending more contemporary dictionaries to Federal Parliament when they learnt they were operating on out-of-date Concise Macquarie editions.

Susan Butler: “But it is not for us to push these things, just as it is not for us to decide what words the Australian language community will choose to use and what they will mean by them. If the law courts and the education system adopt the Macquarie Dictionary as a standard, then it is a sign that the concept of Australian English as an independent variety of English has been generally accepted. We are observers, not actors in this sphere.”

 

Erectile Dysfunction Merchant Guilty of Contempt of Court

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I don’t want to be premature but a well planned blog is a lot like erecting a tent; annoying as hell but better than having a dysfunctional tent that collapses too early leaving everyone disappointed. As such I have considered the values imposed by the Canberra Commercial Law editorial team and have agreed not to make any lewd puns when reporting this case. Disclaimer fulfilled.

Australian Competition and Consumer Commission -v- ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 1441 dealt with an application by the ACCC asking the Federal Court to make findings of contempt against the Advanced Medical Institute over its continued advertising despite court orders.

I think deep down we all knew it was coming. Erectile dysfunction ads have always skirted that fine line between paying $8 for popped salt-air at the cinemas and literally selling snake-oil…you choose which one of those is less ethical. Preying on male insecurity seems to have paid the bills for a number of years, but the guardians of consumer justice have finally caught up AMI.

In April 2015, North J made orders restraining the Australian Medical Institute and a number of associated individuals and entities (AMI) from advertising their erectile dysfunction and premature ejaculation products as effective. At hearing the ACCC accused the AMI of unconscionable conduct in it’s marketing and that this constituted a breach of (as then) s51AB of the Trade Practices Act 1974 (Cth). As part of the orders, the AMI was still allowed to advertise but was not allowed to make claims as to the efficacy of their products to any prospective patients.

Civil Contempt

The ACCC brought proceedings seeking a finding of civil contempt following a number of advertisements from the AMI on radio, television and publications on their website despite the orders.

To satisfy the test of civil contempt ACCC was required to show that the orders were clear enough not to be ambiguous and that AMI was capable of complying with them. In terms of an injunction this test is somewhat lightened by the circumstances alone as the test now becomes essentially the question of: were the orders clear and could the AMI have stopped itself from publishing the ads? This test has developed over a number of cases and is articulated clearly in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [31]. The test seems simpler when put in terms of a negative and the Court barely hesitated on the point even noting that Senior Counsel did not contend the point that the advertisements were deliberate. [54]

AMI based its argument primarily on the definition of “prospective patients” contending that the term “prospective patient” is not clear and unambiguous and alternatively that a “prospective patient” is only someone that expresses an interest rather then the public at large therefore rendering the ads not in breach.

In the views of Moshinsky J, a “prospective patient” extended beyond people who contacted AMI and included those members of the general public suffering from sexual dysfunction. Therefore the advertisements being broadcast to the general public were capable of reaching “prospective patients”.

Given the Court’s findings that the previous orders were clear, unambiguous and capable of compliance, Mohinsky J accordingly made declarations of contempt and listed the matter for a hearing on costs and damages.

BONUS: schedule 1 of the judgment contains transcripts from 20 premature ejaculation ads…it’s grim stuff but still better than watching any of the Star Wars prequels…shots fired.

Uni Pub Development Hampered by Payments Dispute

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Uni Pub has faced a legal challenge relating to the development of its ground level expansion into the next door premises.

A plumber working on the development has made a claim under s15 of the Building and Construction Industry (Security of Payments) Act 2009 (ACT) (SOP) alleging unpaid work of ~$195k out a total contract for $686k which included additional variations not part of the original contract and disputed by Uni Pub. The case is here.

The Payment Claim

Mr Gelonese, the director of VG Enterprises was a plumber employed by Uni Pub to perform the work for the expansion of Uni Pub on the ground level into Tamar House, located next door.

VG filed a claim in the Magistrates Court in Feb 2015 for ~$72k. (Next listed Jan 2016.) On application from VG and seperate from the Magistrates Court action, on 24 July 2015 an adjudicator accepted an appointment to determine a claim of ~$195k outstanding under the SOP. This amount appeared to include the ~$72k previously claimed. Importantly, under s 15, a claim under the SOP must relate only to work performed within the last 12 months.

The SOP came into effect in 2009 as a stop-gap protection to ensure that contractors could claim funds owed to them without resorting to the courts and the associated expenses. The 12-month limit exists to make sure that the function of the act as a rapid resort does not unfairly prejudice defendants from having to respond quickly to aged claims.

The adjudicator awarded the amount despite claims from Uni Pub that none or little work was performed within the preceding 12 months.

Judicial Review

Uni Pub applied to the Supreme Court seeking a determination that the adjudication was invalid on the basis of the 12-month bar. The question of the 12-month bar rested on whether VG could show that any work was completed following the termination of the contract.

Associate Judge Mossop heard evidence including from the site manager, Uni Pub management, Mr Gelonese and a quantity surveyor who assessed the value of the work performed following the termination.

Included in the evidence were unverified timesheets from the plumber detailing thousands of dollars of work which the Court found could not be relied upon with any accuracy and appeared to be prepared by Mr Gelonese’s wife but it was not made clear what primary data she was drawing on.

Importantly, there was nothing signed including the original work contract, though this was not in contention, nor the supposed variation to the contract which brought about the additional amounts. Evidence that the contract was terminated orally in May 2014 was not objected to by the Defendant’s solicitors despite clearly being hearsay. It was the evidence of Uni Pub that no employees of the defendant attended the site after termination.

Uni Pub hired a quantity surveyor to assess the remaining work to allow them hire a new plumber for the remaining $86k worth of work. A second report by the surveyor concluded that approximately $3,500 of work was performed since the termination that could not be attributed to the new plumber.

Finding

The quantity surveyors evidence was key and appeared to corroborate that version of events given by Uni Pub. The assessment that there was $3,500 unaccounted for work also appears to mesh with the statements made by VG that his staff did attend the site and perform some work without coordinating with Uni Pub, though the $3,500 is well short of the claimed $195k.

Mossop AsJ found that little or no work was performed since the termination in May ’14 meaning that the claimed amounts of the arbitration were not performed within the last 12 months and therefore the arbitrator had no jurisdiction to make a decision.

This effectively kills the claim and although there is still the Magistrates Court claim on foot, I’m sure that Mossop AsJ’s reasons will be closely considered by the parties when determining the most effective course of action (i.e. dropping it, with an agreement as to costs).

In its reasons, the Court noted that the plumber was as generic as possible in giving his responses and could not point to any particular work, instead identifying “just general works” which is highly unusual for such a large claim. Most professions can usually point to some sort of concrete accomplishment in exchange for $195k, but I would be willing to accept that challenge.

Comment

There were a few quirks with this matter that seemed to paint the plumber as heaps a little dodgy. Included in the evidence from VG was part of a conversation he secretly recorded when he showed up at a Uni Pub manager’s house unannounced asking him to sign invoices and quizzing him about the remaining payments. One might assume that the tendering of only part of a conversation recorded without the knowledge of a person would usually imply editing, seeing as it is pretty difficult to selectively record without the subject noticing (though I’ve never tried, ok once, but it didn’t end well). Unlike NSW, the ACT has not explicitly created an offence for secretly recording a conversation and also it is unclear whether tendering as evidence would count and publication.
(See s 11, Surveillance Devices Act (NSW))

VG appeared pretty lucky to get off without a harsher finding. Mossop AsJ was linguistically lenient with his characterisation of the evidence of VG; generously “preferring” the evidence that “suggested” that the timesheets did not “accurately record the time”. sigh.