HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 "The danger of identity assumptions"

HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 – AWAITING DECISION. 

The danger of identity assumptions 

The case today is a case awaiting a decision. So I thought it would be interesting examine the submissions of the appellant. Submissions are papers written by defending council that outline the issues at hand. They are interesting to read – particularly for young law students because they show the application of law to legal matters. 

 Today’s case is about the use of evidence and its implications in a court of justice. When we see evidence, we like to assume it favors one side more than the other. However, in this case, you will see the impact of circumstantial evidence. Circumstantial evidence is a two-edged sword. From one angle it will support an argument and from another, it can defeat it. Phones are strong circumstantial evidence. The courts will often refuse to take the view that the accused did not have their phone on them. They can be used to track locations, motive, messages and previous history.   

CASE FACTS 

In the supreme court of South Australia Wesley Gange was convicted of shooting an Adrian McDonald. McDonald was killed in Parafield, South Australia. The prosecution argued that Gange shot McDonald. They claimed he had hidden in the boot of a car not far from where McDonald stood. McDonald and Gange were once in a relationship.

 The relationship had broken down and caused issues between them. Both of them were involved in drugs, firearms, and violent behavior. Gange had previously sold drugs to McDonald. 

His assistant Tristan Castle was sitting in the driver’s seat. Telecommunication records were used to show the movements of Gange and Castle’s phones. Before this event, Gange had sent texts to McDonald which were derogatory and contained threats.

 There was the use of an alibi for Gange. Gange’s girlfriend ‘M’ remembered seeing him at home on that day. However, disputes arose about the veracity of the evidence. She suffered from psychosis, false beliefs, auditory hallucinations, detachment from reality, paranoia and impaired reasoning. It was appealed to the Court of Criminal Appeal. The appeal was on the basis that the judge had failed to direct the jury properly about the evidence of Gange’s involvement. 

The evidence was highly circumstantial. There is was brought to light that Gange and M used multiple phones interchangeably. It is hard to discern who made what texts and who had which phone. It became more impractical when both Gange and M admitted that because of drug use they often didn’t remember where they were or what they’d done. When the judge failed to show the holes properly in the evidence, the jury gave the circumstantial evidence too much weight. The judge should have given it little weight. The failure to do so made the conviction unjust and inevitable. 

 SUMMARY 

The court believed beyond reasonable doubt that the appellant shot the deceased. They based this belief on telephone records, motive evidence, proof of planning and a confrontation via text. The text messages recorded on the phone of the accomplice, Castle. There were documents placing Gange in a different location at the time of the shooting. 

There were also tracked movements through his phone that placed him at the crime scene. Expert evidence pointed out that phones were not a confirmation of identity. It could never be completely confirmed who was on the other end of the phone. However, the courts overlooked this and claimed the evidence was an important¬part of proof. They were allowed to be equally considered by the jury. 

 APPEAL TO HIGH COURT 

The case went to the high court for two reasons

 - Court of criminal appeal erred in holding that the learned trial judge correctly admitted evidence of the appellant’s past possession of firearms 

- The court of criminal appeal erred by not finding that the learned trial judge misdirected the jury about the weight given to each piece of evidence. 

You have to have specific legal reasons for going to the High Court. You can’t just decide that you don’t want to accept the verdict. The Court of Appeal has the right to refuse you ‘leave’ to go to the High Court. 

WHY NOT BELIEVE THE EVIDENCE? 

The evidence appears to be valid. 

However, if you examine the circumstances under which the evidence appears you will realize that it is highly circumstantial. 

 Firstly, the location of Gange’s phone was unimportant. He had left it behind in Castle’s car. They had not met up for a few days. That makes the connection between his placement and the murder further removed. 

Additionally, it was possible that his girlfriend was using the phone. M had purchased and paid for the phone. Their friends recorded that couple was close and mixed communication devices often. They shared friendship groups. 

If M had been using the phone, anything she said could not be taken into account against Gange. Her medical issues, including paranoia, hallucinations, and delusions suggest that anything she said may not be true. 

 Evidence also confirmed that while Gange used this phone, he also had an additional prepaid phone. M sometimes used this prepaid phone. Connecting a particular party to a phone is impossible. The two did not identify themselves before texting. A phone number is only associated with the phone and not its user at the time. Therefore, the courts had to assume an identity for the phone. That identity could never be guaranteed. 

It was shown that others might have been in possession of the tracked phone. Gange could not identify the exact date that he had it return to him. Some evidence suggested that it had been in possession of others during the day of the murder. 

The value of the tracked movements lessened when applied to the social habits of the accused. The shooting occurred during social hours. But because of the use of drugs neither Gange or Castle kept reasonable hours. Thus tracking whose movement was where and which may have been faked was a concern. While Gange admitted that he sometimes didn’t sleep for weeks, the courts had to apply some weight to the fact that the tracked movements reflected a pattern of someone with relatively normal waking hours.

 ISSUES

 There are many more issues connected to this case. In fact, the submissions of the appellant are 22 pages long. However, I wanted to focus on the use of circumstantial evidence in criminal law. 

When used the evidence appears to make a conflicting statement about the right to fair trial. We are all familiar with this right. Therefore, committing someone on a circumstantial case alone appears unfair. 

The Bucca Case has not yet come to trial, but it will be interesting to see the High Court’s remarks upon the extreme reliance on the assumption of identity. 

 New technologies have increased the ability for police to track charged individuals. However, it also leads to confusion and greater misunderstanding. Phone numbers are not identity codes, yet it appears the court has begun to treat them as such. It would be interesting to remove the evidence of Gange’s phone and re-run the trial. My prediction would be that without the critical assumption that a phone indicates the identity of a person, no case could be completed.

 I look forward to hearing your thoughts on this issue. Also for those who don't listen to the podcast. This week I am celebrating two years of running my studyblr and theunderagelawyer.blogspot.com. In celebration I will be releasing a 'printables' package which will be available online in the next episode.

Kodak Black and plea bargaining - is this process really okay?

Dieuson Octave, also known as Kodak Black in his career as a rapper, left the courts happy. Today he was let off a 55-year maximum sentence through a process known as plea bargaining.

A plea deal was made. The deal allowed Koda to agree to do five years of probation and a year of house arrest brought the result.  He had fans calling for his release, showing their support by wearing ‘Free Kodak’ shirts. The overwhelming support of fans was likely an influencing factor for the prosecution’s eagerness to get him out of the courthouse.

The young rapper has gathered followers through the popular video platform Youtube. Well-known rapper ‘Drake’ has even featured his song ‘Skrt’ on his YouTube channel.  However, Kodak's career is plagued with a series of legal issues including assault and drug offenses. While the rapper stereotype matches the conflict with the legal system, the impact on his career would be significant. Some sources suggest this was part of the reason why Kodak was let off.

Lawyers Allan Stephen Zamren and Gary Kollin were both very pleased with the result. Their client will appear on the international music circuit shortly.

So what exactly is a plea bargain?

The term plea bargaining comes from the United States. In Australia, the practice is used as well. It is mostly commonly involved in criminal or civil penalty charges. Usually, the defense will bargain with promises of good behavior and house arrest in exchange for the prosecution recommending a non-custodial sentence.

A plea deal is where your legal team makes an agreement with the prosecutor to accept a lesser charge. That will most likely mean that you will have to enter a plea of guilty. You will plead guilty to a lesser charge.

In Barbaro v The Queen the issue was examined carefully. There the facts are unique. Accused Pasquale Barbaro and Saverio Zirilli were charged for involvement with drugs. The defense and prosecution had negotiated away from court benches. They’d reached an agreement on a sentencing deal.

The judge refused to accept the prosecution’s request for a non-custodial sentence. The judge then lay down his own sentence, upsetting the usual practice.

The case was taken on appeal to the high court. There the prosecution was on a matter of law. The high court had to consider where a plea bargain can be used to prevent the judge from exercising his discretion. It in that the judge as the superior legal mind is capable and should is not his discretion over the case. Usually, this isn’t an issue, but when the defense has bargained away a rightly deserved custodial sentence – can the judge do anything?

It was not a material error for the judge to refuse to accept the prosecution’s submission. The judge was allowed not to take into account any sentencing ranges from the prosecution or defense. The 2014 case was significant as it overruled the previous right for the prosecution to set the bounds of the sentencing range; R v MacNeil-Brown.

Kodak Black is not an isolated case of individuals freed from crimes by plea deals. In fact, he is probably one of the few cases where plea bargaining is just a simpler litigation process. Some litigants who benefit from plea bargaining faced serious crimes
.
Then plea bargaining becomes a threat to the safety of the community as a whole.

Carl Williams was a famous underworld figure. He of with three counts of murder and one count of conspiracy to commit murder. These serious crimes are usually reserved for the most heinous of cases. We’d all like to think they’re treated with the respect they deserve. However, plea bargaining minimizes the severity of the crime. In some cases, it can feel like there was no retribution at all.
Williams’ sentence was thrown away when the Victorian Office of Public Prosecutions struck a deal with Williams’ defense team. Barbaro v The Queen was a 2014 and Williams was trialled in 2007. Then the judge felt he had to follow R v MacNeil-Brown. That meant he accepted the prosecution's submissions and Carl Williams walked away.

So what’s the issue?

Some may find themselves supporting plea bargaining. On face value, it’s a great way of minimizing expensive court costs and negotiating your way out of a devastating custodial sentence. However, the private negotiation process can either force a guilty plea on an innocent accused or realign the sentence to something less serious than what it is.

Plea bargaining is somewhat of a double edged sword. It can save or ruin lives and the foundations of society at the same time.

It is also one of the most secretive processes of the criminal law system.
It is secretive because the negotiation takes place without any official recordings. There is no legislation that can referee this bargaining process and there’s no objective review tribunal. It harbors a little bit too close to the saying ‘you get the justice you pay for.’
If you can afford to hire a good negotiator, you could avoid a drug trafficking charge with a mere use of drugs fine and rehabilitation condition.

To pinpoint what you should be concerned about – realize that this plea bargaining process is entirely anti-democratic an d undermines the foundations of the Australian constitution. There is no jury watching the process. There is no law to ensure justice. Instead, there is just two rogue lawyers and an accused in a room.

It sounds a lot like the plot line of suits, and you would be right to think so.
Some people suggest that this entire process undermines the right against self-incrimination and the right to a retrial. After all, if you accept the wrong plea bargain, there're no files there for you to appeal against.

It’s a lot like an illusory promise. For those who are not familiar with the term, this refers to a contractual promise that has no legal force behind it. It lacks payment or consideration forcing the courts to ignore it.

A plea bargain carries no weight in an appeal court. That being said American courts have treated plea bargains like contracts. That, however, does require some documentation of the bargaining process. Many Australian lawyers prefer to plea bargain through a series of subtle changes and applications to the court. This slower, costlier process has no action in contracts and can take much longer.
Overall, plea bargaining is a well-established process of the courts. However, it can legally pervert the course of justice. Judges are seldom as brave as seen in Barbaro v The Queen. Requiring that plea bargaining becomes an above the table, recorded litigation process can help to ensure justice on both sides of the bench.

How to speed read like an expert

Hello everyone and welcome to another blog post on the underage lawyer.

 One of the topics that have been coming up frequently in my conversations with others is speed reading. It’s a skill that you probably only think about when you have three days to complete an essay, and you haven’t started researching yet. However, speed reading is an important skill that can assist you in everyday life. It shouldn’t be disregarded as useless skills. 

Those who want to pursue a career in law need to know that they will spend every day of their life reading. 


Client’s files can be anything from one to forty volumes long – and it’s your job to read and study them all. Reading is also the best way to expand your vocabulary and improve your thinking capabilities.

 Think of reading as upgrading technology. The more you do it, the better it gets. The less you do it, you eventually fall behind. Here are a few ways to improve your reading speed:

 1. Read a lot

 This is a basic essential. The more you read the faster you get. The less the read the slower you will become. Some scientific studies suggest that reading things on the screen of a computer is actually different to reading on paper. I’m not entirely convinced, but just to be certain you’re actually reaping the benefits of reading make sure you read both on and off screen. To improve your reading, think of it a little like sprinting. You have to run as fast as you can regardless of whether you can maintain the speed or not. When you are first beginning training yourself to speed read, don’t worry so much about comprehension. As your retrain your eyes to move along the page at a faster rate, you’ll begin to take more in.

 2. Pick the operative words 

One fatal mistake when it comes to non-recreational reading is that we read all of it. It’s very rare that all of the text will be relevant to you. To improve your reading pace identify what it is you’re looking for. Then pick three or four words that will describe that thing. From there you can run your eyes over the text. Every time you see a relevant word stop and read a few sentences surrounding the word. If it applies, congratulations. If it doesn’t apply, then keep skimming through. This way you’ll be able to ascertain just how relevant the material is. If you don’t see any words that seem relevant then either rethink your operative words or move on to the next paper. 

3. Read the first and last line 

There’s a lot to be said for introductions and conclusions. Remember learning about topic sentences in high school? Well, this is why you use them. Academic literature uses these to highlight what they’re going to say. When you’re in a rush, don’t bother with the rest of the paragraph. Just focus on the first lines of every article. By the time you reach the end, you’ll have a general idea of what’s being said. Additionally, if you read the last line of every paragraph, you’ll have a concluding statement and a linking statement. The linking statement usually explains how the next section will connect to the first. This is important because it will show you the pace that the essay evolves at and any assumptions that you need to be aware of. 

 4. Don’t sound the words aloud in your head 

When reading a lot of readers like to ‘speak’ the words in their head. This is a waste of time. Your brain is capable of comprehending the phrase without sounding it out. The more you read, the more you will be able to do this. But to begin with, help yourself to lose the habit by reciting random words in your head as you read. I began doing this by saying ‘aeiou’ over and over again while I was reading. To do this at first, it is best, to start with relatively simple reads. Try reading opinion articles or Buzzfeed pieces. They’re much easier to comprehend than academic literature and will build your confidence. You may be surprised at how much you can understand without having to focus too much on sounding out the words. 

 5. Dot point as you go 

A critical issue with speed reading is that people are concerned they can’t read quickly and understand the text. A simple way to of getting around this is to write one word describing the paragraph. Skim read the article as fast as you can and then summarize it immediately. The use of summaries in one or two words helps to lessen the fear of not understanding. The human brain is far less reliant on the sound of the words than people think. When reading the shape of the letters is just as important.

 6. When you don’t understand keep reading 

This may sound a little counter-intuitive. However, the biggest trap for slow readers is that they are hesitant to move on before they understand something. That will slow you down. Some points are poorly explained, and it will take multiple readings to understand. You need to know that if a point is badly explained it’s likely not essential to the argument and is irrelevant to your reading. It may also be that you’ll come to understand it when you read something later in the document. Your best bet when trying to rush your way through a massive pile of information is just to keep reading. Stopping and rereading things will break the rhythm of the reading. That may also cause you to read slower.

Illegality and your workplace

Illegality in law

As many of my readers or listeners are those involved in small commercial enterprises, I thought it would be good to explore the doctrine of illegality. Illegality is a simple rule which is subject to many exceptions. At its core, it can completely void a contract in situations where a statute has made the action illegal.

Some may have taken this doctrine for granted believing it unquestionable that contracts for theft, drug dealing or murder were unenforceable in a contract of law. Clearly, illegal acts were the types of contracts that were intended to void with under this doctrine. However, as the society and regulatory standards have evolved so has the application of this principle extended. Leaving some enterprises, contractors and consumers at the mercy of legal interpretation.

Explaining the illegality doctrine

A statute may expressly or impliedly render a contract illegal therefore, requiring courts to make it inoperable leaving neither party with any remedy. Those who have already benefited from the contract will not have to pay back their benefits. However, just because a statute prohibits a contract does not always mean it is unenforceable. ACCC v Baxter found that; A law unilaterally prohibiting the action doesn’t void a contract. It is dependent on factors such as:

-    Language

-    Expertise of the parties

-    Scope

-    Purpose

-    Party intent

For example; if a statute prevents unlicensed homes from breeding animals it does not necessarily prevent a contract to purchase a pregnant dog. Ledlabratories Servier v Apotex Inc puts forward the statement that ‘the decision inevitably turns on their facts.’ The comment shows just how uncontrollable this doctrine can be when dealing with acts that lack the character of illegality.

A statute may encourage the courts to prohibit an action where:

-    There are a variety of public policy factors

-    On balance, it should not be enforced

The precedents in this area must be treated with the same level caution as the statutes because courts may approach the facts differently, leaving much ambiguity. The doctrine of illegality is an excellent example of the importance of courtroom advocacy. An advocate that is capable of disproving the fault of their party has effectively seduced the court for their party.

Applying the doctrine requires that consider ation for the following facts:

-    Prima facie appearance of statutory prohibition

-    Whether illegality applies to the formation or operation of the contract

-    Statutory construction weighed against public policy considerations

There is a vital difference between an illegality that prevents the formation or operation of a contract and one that has a close relationship with public policy. Courts will often consider contracts which are illegal formation or operation more favorably than those that contravene public policy. Mostly, the favorable consideration is because the doctrine is intended to prevent the degradation of law and justice amongst society. It is not designed to circumvent the commercial dealings of general businesses.

Additionally, if the fault between the parties is unequal then the term pari delicito (in equal fault) applies as the presence of fraud, undue influence or oppression prevents the fraudulent party from relying on an illegality defense.

Nelson and Fitzgerald v FJ two prominent precedents in this area support the finding by stating, a contract which is lawful and enforceable upon formation may be binding upon its operation but not those which are against public policy considerations.

If an agreement requires something illegal, it is different to if something illegal must be done to finalize the contract. The statement forms the hard rule of illegality from a Singapore Case; Tien Sew May v Boon Lay Choo. The underlying principle of the case is that while the defense of illegality and public policy isn’t ideal, it may make a contract enforceable if it is beneficial for the general public.

Essentially this means that the courts will enforce an illegal contract if  otherwise more people would suffer unjustly.

When the illegality involves fraud

The principle ex dolo malo non-oritur actio or no right of action can have its origin in fraud, is the underpinning principle of illegality. It means that the defendant will find favor over the plaintiff (the person bringing the action to court) was fraudulent or took part in some of the fraudulent act.

Where they are both equally at fault the courts will apply; potior est conditio defenditis or equal in responsibility better is the state of the possessor. That essentially means that the defendant will benefit more than the plaintiff if the courts see such a case. The holding was applied in Holman v Johnson by Lord Mansfield.

Characterizing the doctrine

This principle is unique as both parties are at fault and not just one. It arises to provide not individual justice but the continued efficacy of the legal system. Therefore, the courts must delicately balance between judging enforceability and not encouraging or frustrating a contract. There are several features that define the leniency and severity of the courts approach to illegal contracts.

The first is the Bowmakers rule; A party to illegality may recover through legal or equitable interest if a claim can establish without reliance on illegality their right to recover. The finding was also seen in part in a later case called Tinsley v Milligan.

Note, the manner in which illegality is articulated in court will alter whether the courts will view the doctrine as a defense, mitigating factor or fundamental limitation. That is essential because it will modify the impact that illegality will have.

The second important factor is windfall gains. Windfall gains is a term used to describe the unexpected benefit of one party at the expense of another. When the plaintiff is likely to receive a windfall gain despite both parties having had a hand in the illegality such as witnessed in Nelson v Nelson the court will not refuse relief as long as the claimant was mistaken or ignorant as to the circumstances which made the contract illegal. It must also be reasonable for them to be ignorant of it, i.e., Signatories to a lease under which a specialty legal statute has recently been enacted. This is interesting because it is one of the few exceptions to the general premise that ‘ignorance is no excuse under the law’.

Thirdly, it may still be the contract may still be enforced when the statute intended to protect a particular class of person for which the claimant is a member. For example, if a law wanted to protect small business construction companies it may continue to enforce the contract if it benefits the small construction company. 

Finally, where the contract's illegal purpose has not achieved the defense of illegality cannot be raised.

As you can see the doctrine of illegality is a very complex area, but with a highly restrictive application. It's nothing to worry about, but it's certainly worth looking into before you engage with any new contracts!

The High Court under the microscope: Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26

High Court of Australia Report and Summary

As a young lawyer living in Australia, one of the things I am most excited about is the access to justice. That means that as Australians and more generally, members of the world we have a right of access to all legal judgments passed down by the courts. Therefore, I would like to summarize a recent high court decision which I’m sure you will all find very exciting. The judgment was handed down on the 20th of July 2016.

The title of the case is Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd. The following is only intended to be a summary of the case and will not include all the detail held by the original judgment.

The judges:

French.

 Robert Shenton French was born in March 1947 and is the twelfth and current Chief Justice of the High Court of Australia. He is from Western Australia and is commonly described as a social progressive judge.

Kiefel.

Susan Mary Kiefel is a Justice in the High Court of Australia and was born in January 1954. She left school at fifteen and is only the third women ever to have been appointed as a judge to the High Court. She’s from Queensland Australia and has a keen interest in comparative law.

Bell.

Virgina Bell is a justice of the High Court of Australia and was sworn in on the 3rd of February 2009. She was one of the first to work at the Redfern Legal Center and has a strong commitment to social justice. However, she does caution against labeling judges and prefers to allow her actions show her true beliefs.

Gageler.

Stephen Gageler is a Justice in the High Court and was previously working as a barrister in Sydney, New South Wales. He was born in July 1958 and has made a name for himself as being someone who is keen to separate himself from the pack. He prefers to write alone and firmly believes in considering public policy when determining a result.

Public policy is a general term meaning to think about the well-being and overall impact on the community.

Keane.

Justice Keane was appointed in 2003 and comes from Queensland Australia. He is often called a ‘speedy judge’ by the media. The term refers to his reputation for fast work and an eye for attempting to minimize the growing complex and expense process that is litigation. In an interview with the Australian, another judge commented that he is ‘a leader in embracing electronic filing and organization of its workload.’

Nettle.

Geoffrey Nettle is called by the attorney general one of Australia’s finest jurists. He caused some controversy as he is the oldest judge to be appointed to the position as judges are required to retire at the age of seventy. With great wit, he told an audience ‘any damage I may do now is limited.’ He’s an approachable judge with an incredible diversity of interest and experience.

Gordon JJ:

Michelle Gordon was appointed to the court in June 2015. Before her appointment, she was a judge in the Federal Court of Australia. Justice Gordon has much experience from her previous experience in the Federal Court.  She is also highly regarded by the legal community.

 The case

Parties (members) to the case:

Appellant: Crown

Respondent: Cosmopolitan

The big issue:

Crown made a statement to Cosmopolitan that they would be ‘looked after at renewal time.’ The court had to consider whether this statement meant that Cosmopolitan had a guaranteed future with the lease.

Court history:

The VCAT determined that the declaration implied that Crown had to renew the leases for five years on terms that they could decide. The Tribunal also concluded that if they were wrong, then the tenants were estopped from denying the existence of the collateral contract.

Terms:

VCAT: Victorian Civil and Administrative Tribunal (Australia)

Estopped: Refers to the legal doctrine of contract law ‘estoppel.’ That means when a promise is made that a second party relied and acted on they are entitled to have it enforced in a court of justice.

Collateral contract: The happens when one contract already exists but another promise or condition connected to that contract forms another contract – called a subsidiary contract.

Facts of the case:

Crown owns the Melbourne Casino and the Entertainment Complex. The tenants then had two leases where they operated two restaurants. In 2005 lease negotiations began and the new leases offered by the Crown were limited to five years. They also did not contain an option for renewal and only required for the Crow­­­­n to give six months’ notice to let Cosmopolitan know whether they would:

A)    Renew the lease and the terms

B)    Allow the tenant to occupy the premises on a monthly basis after the expiry date

C)    Require the tenant to leave

Part of this agreement also mean that Cosmopolitan had to pay for and run a major refurbishment. The resident’s representative did express concern about renovation costs and attempted to solicit a promise of lease extension from the crown. However, Crown was unwilling to do this.

The contract was signed in 2005 and delivered to the Crown in March 2006.

In 2008 tenders were requested by Crown for new leases. Cosmopolitan put their bids in during March 2009. Crown rejected them and required them to vacate the premises by August 2010 when their 2005 lease expired.

In 2010 Cosmopolitan brought the issue to VCAT and complained that Crown had suggested to their legal representative that they'd have an extra five years of tenancy on their lease. They said that the refurbishments would not have occurred without this promise.

They claimed two things:

1.    The promise created a collateral contract

2.    If it did not create a collateral contract, Crown was estopped from not extending their lease.

Both claims have the same effect. The Crown would not be able to refuse to extend the lease.

VCAT did not find these representations in the terms but did find a statement that gave rise to a collateral contract. They rejected evident from Mr. Zampelis, Cosmopolitan’s legal representative but did accept evidence from Mr. Zampelis about assurances sought from Crown about a longer release term. The key piece of evidence was a handwritten note claiming that Cosmopolitan would be ‘looked after’ at renewal time.

VCAT’s original reasoning:

Promissory and Proprietary Estoppel

According to the High Court, VCAT erroneously reasoned in regards to the promissory statement. The promise to renew a five-year lease implied that the renewal would be for the same period. VCAT said that this was the only term that the Crown had to uphold. They did not agree that similar terms and conditions to the 2005 contract had to be applied. The High Court infers that this kind of reasoning is risky as commercial enterprises cannot always be trusted to be fair under circumstances like these.

The enactment of estoppel requires a precise and unambiguous statement; Low v Bouverie. This requires that the person who they are addressed to would understand them in a particular way. They must be capable of misleading a reasonable person in that same situation to believe something that is not accurate. In this circumstance the statement ‘looked after at renewal time’ is not capable of conveying that Crown would extend the lease.

Therefore, the estoppel doctrine does not apply to this circumstance due to the ambiguity of the statement.

Collateral Contract

Hospital Products v US Surgical Corp; a representation made in the course of negotiations may result in an agreement collateral to the main agreement if it can be concluded that the parties intended that representation to be contractually binding or if it has that quality of a contractual promise. The Supreme Court of Victoria said about this case the statement ‘looked after at renewal time’ was too ambiguous to be inferred to mean a contractually binding promise to give an extra five years of lease.

The Supreme Court also said that the statement in question lacked specificity and failed to outline how exactly the Crown would fulfill the promise.

Result:

There was no promise, and there was no contract. The lease was lawfully terminated, and Cosmopolitan are not entitled to a renewal or damages.

What does this mean for me?

It doesn’t add much to the doctrine of estoppel, but overall it does tell you that if you’re in a negotiation process with someone you should always make sure that you’re both being specific. There are a lot of court cases similar to this one where ambiguous statements led to prolonged legal conflict that is often costly and ineffective.

If you’re entering a contractual negotiation like the one above it is advisable that you enlist the services of a registered legal practitioner. You may think solicitors are expensive but court costs are higher!

Highlights from some of the judges:

Gaegeler:

-    The lease did not operate to confer a contractual discretion which is circumscribed by the collateral contract…instead to impose a contractual obligation on Crown to give notice of a decision to be made by Crown outside the terms of the lease.

-    [Crown’s case] assert’s want of contractual certainty [and] contractual completeness.

Keane:

-    The categories of promissory and proprietary estoppel serve a common purpose of protecting a party from a detriment which would flow from a party’s change of position if the assumption or expectation that led to it were deserted. (Giumelli v Giumelli)

-    It would reduce the law to incoherence if a representation to uncertain or ambiguous to give rise to a contract of a variation of contractual rights and liabilities were held to be sufficient to found a promissory estoppel

Nettle:

-    Principal question…is whether the court of appeal was correct to remit the matter back to VCAT on the basis that Crown was estopped from departing from the tenants assumption…that question should be answered no.

-    [about the application of promissory estoppel] The notion of some “lower limit” of the “great area” was misconceived {emphasis not added}

If you'd like to read the judgement in full it is available online here.

Or you can read other high court cases online here.

The fault in our democracies

Safe to say coffee won't be going
near my laptop again!

Hello everyone, sorry for the long break in posting. It was supposed to be a short break – but following some computer problems, it quickly turned into a longer one. – Long story short I managed to spill coffee on my laptop…and didn’t that just ruin my love of coffee? 

There have been a lot of interesting things going on in my absence including but not limited to, the rise of Donald Trump, the Medicare scandal and most famously the Brexit decision. There are a lot of legal issues associated with them, but the most common thread between all of them is misinformation causing a false overall decision.

It is the general rule that you cannot intentionally misinform the public without some consequence for your mistake. We witness this most commonly through media shows like today tonight or consumer affairs, which publicly shame businesses for misinforming the public producing a false or unfair result. A couple of years ago a juice company Ribena was rebuked after its ‘black current health drink’, promoted to children and their families, was shown to be incredibly unhealthy. The drink deliberately misled parents to believe that it was safe to consume regularly when in actuality it could have harmful effects on health if regularly consumed without a healthy diet and regular exercise.

I am sure there are much more examples of penalties for companies that misinform the public. 

The law may seem boring, but it is important
for maintaining an equitable society

However, despite penalties existing for businesses, a cone of immunity surrounds the political arena and its delegates. It is fair to say that the most watched democracies; namely the USA and the UK have been the largest culprits of these political scandals. Obviously, there must be some level of inducement made by political parties to promote their message. However, surely it must stop short of behavior that would be unacceptable anywhere else, like lying or harassment. I would like to pick this topic up later as I feel there are many more sides to this argument.

This situation does bring up the question of freedom of speech. When electing politicians, you would think that you would want to give them the freedom to speak openly. However, this privilege is

clearly being abused, especially in America where the constraints on freedom of speech are so minimal that you could just about defame anyone as long as you have the money to defend yourself. Which is probably why Donald Trump has not been sued for making inappropriate and defamatory public statements such as;

‘Barack Obama’s birth certificate is a fraud.'

‘Ariana Huffington is unattractive, both inside and out.'

‘It does not matter what the media write as long as you have got a young and beautiful, piece of ass.'

‘If I were running ‘The View’ I’d fire Rosie O’Donnell. I mean, I’d look at her right in that fat, ugly face of hers, I’d say ‘Rosie, you’re fired.’”

‘The only card [Hilary Cinton] has is the woman’s card. She’s got nothing else to offer and, frankly, if Hillary Clinton were a man, I don’t think she’d get 5 percent of the vote.’

In all of these quotes, Trump either directly defames a famous person or an entire industry. If you do some research, you will find that Trump has managed to escape liability for all of these statements almost entirely.

A lot of what Trump says makes me think of
'Let them eat cake' - Marie Antoinette

I say almost because the one point at which Trump has suffered and I am sure you will all agree is his personal brand. A personal brand is a term usually referring to a person’s professional reputation and transferring it into a market value. Every person has a personal brand, and you may use it when applying for a job, writing an article or networking at a professional event. Merely mentioning ‘Trump’ can end an entire conversation. His reputation is so socially damaged that some would suggest that it was irreparable.

Terrifyingly, America has continued to support this political figure, despite multiple outrageous and inappropriate statements. Some propose that he is only popular because it is a way of people protesting against the weak leadership shown by other candidates indicating the public’s disillusionment with the overall political system. The landside backing of Barack Obama supports this theory– who, although had a high level of integrity, showed strong leadership and distinction in his policies. This can sway public opinion significantly.

It concerns me that this bears a striking similarity to the Brexit result. I will not give my opinion on the final result because I would prefer to perform an analysis of the actual events leading up to it.  The Brexit was fraught with both misinformation and public confusion. The high level of disillusion in Britain with the decisions of the European Union in the past and the lack of democratic influence that they had over Brussels led to uncertainty about the actual consequences of the decision.

Some individuals were able to inform themselves about the role of the European Union and investigated in depth the effects that the British leaving the European Union would have. Yet the majority of people relied upon the media and its coverage of politicians to determine who they would vote for. Similar as to what occurred in Australia during the Medicare Scandal of 2016, one issue led the decision because of media sensationalism.

Immigration.

Immigration is a contentious problem that has advantages and disadvantages on both sides. It would be unreasonable to suggest that migration does not come with difficulties. Every culture from Africa to Britain has its quirks and melding one culture with another will undoubtedly cause conflict. Therefore, finding cultures that are similar are imperative for positive migration with minimal conflict.

Some may suggest that the geographical location of European countries infers a cultural similarity. However, such a suggestion is outdated and ridiculous. Russians and Britains are not similar despite sharing a continent. Same as Norway and Germany are not similar despite sharing a border. Australians and Britains have a culture that is relatively similar despite a geographical distance. The same is true for Canadians and Australians.

History and culture are part of who we are
and should not be ignored when seeking a
new homeland

The history shared by the countries has created a similar culture that allows for the blending of the three of them to be as simple as possible. Therefore, thought needs to be given to the culture and habits of the country to which migrants are traveling. It is terrifying enough to move countries, and I am sure that anyone who has visited other countries knows the relief of coming to a country which bears similarity to its own. It is not racist or insensitive to suggest that the common characteristics of cultures should be matched to another country for refugee migration but a practical consideration for better immigration.

However, it does leave open the issue of diversity. Diversity encourages the development of thought and broader value appreciation. In fact, Australia has benefited from the integration of cultures like the Italian, Greek and Vietnamese. This migration did not come without issues and occurred in numbers that were carefully monitored by the Australian government.

It does not take much research to discover the racist rebuke of Australia towards the influx of migrants. It was not long ago that Australia sported a ‘white Australia’ policy, which operated to prevent the flow of undesired migrants into the country.

While the application of the policy was culturally insensitive and disappointing in reality, the theory is sound. The original idea behind it was that Australia would apply a selective process to determine the characteristics of entrants into the country that would suit the ideology of Australian culture. This process preserves the idiosyncrasies that make up a diverse culture while ensuring that there was a thread of commonality that maintained the national image of Australia.

It was the same concern that drove the disillusionment of the British people. In a belief that their national image was under threat with the influx of unknown and potentially radically different migrants a reactive protest resulted in Britain leaving the European Union.

The concern, however, is that the people of Britain did not understand the true nature or impact of their vote. A false understanding was promoted to the public at mass by political parties such as the Independence Party – with political member Boris Johnson.

The ex-Mayor of London was so confident in his false promotions that he drove around on a bright red bus proclaiming that leaving the European Union would give the NHS 350 Million pounds extra a week. Unsurprisingly, this was later denied to be true by Nigel Farage. Nigel Farage is a British Political, who is the leader of the Independence Party.

One would assume that the head of the independence party would have prevented the overzealous Boris Johnson from spreading misinformation. However, it appears that in this battle, it was more about getting votes for their party than actually informing the public.

This cruel tactic may sound familiar to Australians who recently found themselves at the mercy of the Labor party. Bill Shorten, the leader of the Labor Party, pitched a claim to the public that the Liberal Party had plans to privatize Medicare.

Researching is a serious business ;)

As a country that has prided itself on the provision of healthcare to all in need, it is understandable why the public reacted so violently to the claim. Similar to the Brexit this was not the only issue at hand, as the economic future of Australia was also important. Through media tactics, the Medicare scare quickly took hold in the minds of most Australians preventing other relevant discussions from taking place.

What is evident in all three situations is that there is fast becoming a culture of sensationalism in politics. Democracies will always run the risk of erring too closely to an ‘American Idol’ type contest, where popularity determines the winner and not political sense. It is evident that currently, the media is taking a front seat in driving politics away from an objective debate to a reality television style throw down.

It would be inappropriate to ban the media from participating in election campaigns. Freedom of speech is perpetuated by the press and should never be lost. It was a right that democracies around the globe fought for by the people. They did not fight for the right to spread misinformation and I am shocked to see this occurring around the globe.

I would love to hear your ideas about how we can prevent media sensationalism in the future so please if you enjoyed or disagree with me - please let me know! You can get in contact with me through email, twitter, instagram or tumblr.

Why successful people talk to themselves

I want to talk about the importance of self-communication. There are a lot of buzzwords surrounding the skill of communication. It’s something that we all promote that we have when we apply for a new job or attempt to make new friends. It’s a skill that we could not survive in this universe without. Communication is as essential as breathing, but what is often forgotten about is self-communication.

It sounds complex but the reality is simple

To some extent, self-communication is talking to yourself as if you were another person. It is strange to think about, as society often rejects the notion of talking to yourself as something that mentally unwell people do. But in truth self-communication is the process of the subconscious mind talking to the conscious mind.

I want to bring this to your attention, as a young lawyer, because I think it’s so important to understand yourself. A lot of lawyers work late hours, deal with traumatic or confronting situations and find themselves walking the line between morality and the law. These compromising situations are quickly repressed and ignored in the mind, leading to later issues.

Suppressing the complicated feelings that arise from facing such issues is unhealthy and such repression can lead to ignoring your subconscious thoughts. This is where I will raise the concept of self-communication.

What I mean by this term, is to talk to yourself as if you were talking to another person. For example, if you find yourself not focusing on a task that you know must be done, rather than getting angry you would initiate the self talk.

The conversation would begin with an investigation into why you were not focusing. Are you craving nutrients, sleep, comfort, warmth or are you in pain? These five things may appear obvious, but many people who are under stress or skilled at ignoring their body’s cues can often miss these essential human needs.

Skipping a meal can be very bad for
your focus - and your stomach!

It’s not uncommon for me to lose focus only to realize I forgot a meal time or have goosebumps. This most commonly happens during the period before exams when there is lots of work to be done and little time to do it. Forcing yourself to ask the question may seem childish or irrelevant, but it is important to draw your attention to these five pillars.

It refers back to Maslow's hierarchy of needs. For those who aren’t aware, Maslow is a philosopher who created a theory that humans cannot function unless they have certain requirements met first. The lowest tiers include basic necessities such as shelter, safety, food, sleep, and comfort. They are not privileges to be awarded once your work is done.

A stern reminder to all students and professionals, your job will never be complete. The longer that you withhold things from yourself that are required for your body and mind to function properly the worse your attention and focus will become. Often your mental health will suffer before your physical, and that is why critical indicators such as lack of interest or regression to unhealthy habits, like overeating, hair pulling or overwhelming negative thoughts must be paid attention to.

Negative self-talk is the most harmful consequence of failing to build your skill of self-communication. Those people who cannot understand their subconscious needs often find themselves lost in a mixture of confusion, negative habits, and low self-esteem. It is not an insignificant correlation that lack of self-communication results in poor habits and frustration.

If you do have low self-communication and you’re struggling to focus, I’d like to extend a challenge to you. In fact, even if you’re not facing an issue at work, but struggling to come to terms with a complex event in your life I’d like you to attempt my challenge.

Maybe treat yourself to a hot drink after
writing this letter, you deserve it!

My challenge is to write yourself a letter. Please don’t type it, use a physical piece of paper and pen.

The letter must have four components

a)    Tell yourself what’s going wrong

b)    Tell yourself why you have to do this task

c)    Explain to yourself what’s been happening in your day, week and month

d)    Answer the question; what would I rather be doing?

If, at any point during your letter you feel that you’re leaving the question or statement that I’ve asked you to write about don’t stop yourself. Often putting pen to paper is a calming physical motion that encourages you to feel safe due to the repetition of the movement. This calm can help you to feel safe and for any overriding emotional issues that you may not have dealt with to come to the surface. This is why I encourage you not to stop yourself from going on a tangent and writing about anything that your brain takes an interest in.

Sometimes it may be that you have watched or read something that was emotionally disturbing. I have been impacted by news articles or legal cases that were morally challenging, emotionally disturbing or similar to something that I have experienced in my own life. However as we all lead busy lives, it's hard to bring that disturbance to the surface, leaving it to fester and destroy your work ethic or mental clarity.

I hope the letter that you write to yourself becomes a useful tool that you re-use to develop stronger self-communication skills. Sometimes initially writing the letter won’t bring you an immediate understanding of what is going on. Don’t assume that this means nothing is wrong. Our bodies and minds are more intelligent than we give them credit for and often they tell us more than we know. If it so happens that you read your letter back after writing it and actually believe that there is nothing behind it, that is okay, but if there is something unusual about your behavior I’d recommend leaving it for an hour or so.

You can do it!

After the time, away from your letter re-read it and consider any reoccurring themes. Sometimes you may realize that there was an unusual focus on losing an item, having a bad day or wanting something. These simple circumstances can indicate many different things, usually though they will reflect back on Maslow's hierarchy of needs and suggest that you are missing one of the lower tier requirements. Missing one of these requirements does prevent you from focusing your brain and having a productive work session.



Good luck on building your self-communication skills and I hope you will all promote this challenge to your friends and please tag me on #theunderagelawyer if you found my task helpful.