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High Court holds contact with Counsel amounts to apprehension of bias

The facts

The appellant (“the husband”) and the first respondent (“the wife”) had married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under section 79 of the Family Law Act 1975 (Cth) (“the Act”) for orders settling the property of the parties to the marriage. The ensuing litigation, described by the trial judge as “long‑running” and “staggeringly expensive”, also involved the corporate trustee of the Family Trust, a director of the corporate trustee, the executors of the estate of the husband’s father, and the husband’s mother, known as “the Additional Parties”.

In 2011, Crisford J of the Family Court of Western Australia made property settlement orders that were later set aside by the Full Court on the basis that the husband’s mother had been denied procedural fairness.

From 3 August to 17 August 2016, a trial before Walters J occurred. The trial was then adjourned to 13 September 2016 for the parties to make oral submissions and “to be heard in relation to the making of interim or interlocutory orders pending the delivery of [final] judgment” as “[a]ll parties accepted that it would be likely to take up to 12 months for the judgment to be delivered”. Written submissions were filed by the adult children of the husband and wife, as well as the Additional Parties, on 24 August, by the husband on 31 August and by the wife on 7 September.

On 9 September 2016, the Additional Parties applied for the trial judge to recuse himself on the ground of apprehended bias, based on statements and rulings made by the judge during the trial. That application was supported by the husband but opposed by the wife and adult children. The Application was heard and dismissed by the trial judge on 13 September. An appeal by the corporate trustee and the husband’s mother against the dismissal of the Application, supported by the husband, was dismissed by the Full Court of the Family Court of Australia.

On 12 February 2018, the trial judge delivered judgment and, among other things, purported to make orders under s 79 of the Act (“the 2018 Property Orders”). Those orders did not set aside or vary the 2011 Property Orders but were inconsistent with them. Three days later, the trial judge retired. On 12 March 2018, the husband appealed to the Full Court of the Family Court of Australia against the 2018 Property Orders.

On 8 May 2018, the husband’s solicitor wrote to the barrister who had appeared for the wife before the trial judge about “gossip” that while the trial judge was seised of the Charisteas matter, the barrister and the judge had engaged outside of court in a manner inconsistent with her obligations and those of the judge. The letter requested the barrister provide written assurance that “during the time the former Judge was seised of the [Charisteas] matter, [she] had no contact with him outside of court”; and if she could not provide that assurance, she was asked to “outline the circumstances of [her] dealings with him”.

Two weeks later, the barrister responded stating that she had met with the judge for a drink or coffee on approximately four occasions between 22 March 2016 and 12 February 2018; had spoken with the judge by telephone on five occasions between January 2017 and August 2017; had exchanged “numerous” text messages with the judge between 20 June 2016 and 15 September 2017 (except for a brief hiatus during the evidence stage of the trial); and had exchanged “occasional” text messages with the judge from 15 September 2017 until 12 February 2018. The barrister concluded by stating that the “communications” with the trial judge did not concern “the substance of the … case”. The husband filed an amended notice of appeal adding grounds alleging apprehension of bias.

Relevant Law

In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, a majority of the High Court of Australia said that:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

In Johnson v Johnson (2000) 201 CLR 488, five High Court judges observed that while the fair‑minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.

In the same case, Kirby J observed that:

“It is a “fundamental rule” of natural justice and an “abiding value of our legal system” that every adjudicator must be free from bias. This same principle has been accepted in the international law of human rights, which supports the vigilant approach this Court has taken to the possibility that the “parties or the public might entertain a reasonable apprehension” that an adjudicator may not be impartial.”

In R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972, Gibbs CJ and Mason J said that:

“The sound instinct of the legal profession – judges and practitioners alike – has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”

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Peter Ridd loses High Court appeal — Sterling Law QLD

Professor Peter Ridd’s appeal to the High Court over the termination of his employment by James Cook University (JCU) has today been dismissed.

Peter Ridd loses High Court appeal — Sterling Law QLD

On 16 December 2015. Professor Ridd sent an email to a journalist suggesting that reports produced by the Great Barrier Reef Marine Park Authority and the ARC Centre of Excellence were unreliable. Professor Ridd stated in the email that those two organisations should “check their facts before they spin their story” and that if the organisations were asked about the issue, his “guess is that they will both wiggle and squirm because they actually know that these pictures are likely to be telling a misleading story – and they will smell a trap”.

JCU found that, in using the language he did in the relevant email, Professor Ridd’s conduct amounted to “Misconduct” as defined in the Enterprise Agreement in that he did not act in a collegial way, did not respect the right of others, did not display responsibility in respecting his colleagues’ reputations, in breach of the Code of Conduct (the First Finding).

On 29 April 2016, Professor Ridd was issued with a formal censure (the 2016 Censure) and was told that, “In future it is an expectation that in maintaining your right to make public comment in a professional capacity in an academic field in which you are recognised, it must be in a collegial manner that upholds the University and individuals (sic) respect” (the First Speech Direction).

On 1 August 2017 participated in an interview with Alan Jones and Peta Credlin where he again criticised the Great Barrier Reef Marine Park Authority and the ARC Centre of Excellence.

On 2 May 2018, JCU terminated Professor Ridd’s employment for serious misconduct. The termination followed two prior censures, one on 29 April 2016, and one, described as the Final Censure, on 21 November 2017. The censures related to findings by JCU that Professor Ridd had engaged in misconduct contrary to the Code of Conduct in that he had not expressed a professional opinion in a manner consistent with his obligations under the Code of Conduct. This included by failing to act “in the collegial and academic spirit” but had denigrated a colleague (including by failing to treat a fellow staff member “with respect and courtesy”), the ARC Centre of Excellence in Coral Reef Studies (ARC Centre of Excellence), and the Great Barrier Reef Marine Park Authority (GBRMPA), that he had denigrated the University in a manner inconsistent with his obligations under the Code of Conduct, and that he had breached directions to maintain confidentiality. JCU considered that Professor Ridd’s conduct subsequent to the Final Censure amounted to serious misconduct, demonstrating a pattern of conduct intentionally designed to damage the University’s reputation and destructive of the necessary trust and confidence for the continuation of the employment relationship.

Professor Ridd commenced the proceedings in the Federal Circuit Court on 20 November 2017. 

Full story: https://sterlinglawqld.com/peter-ridd-loses-high-court-appeal

Sterling Law gets costs order against solicitor — Sterling Law QLD

This week, Sterling Law obtained a costs order on the indemnity basis against a solicitor in the Federal Circuit and Family Court of Australia. We are so glad that our client was fully compensated for a frivolous Application in a Case after a trial to re-open the evidence.

We had no assistance from Counsel or anyone else, we pulled this stunning result off single-handedly. Senior Counsel for the other side was lucky that he avoided getting a costs order against him as well.

This case is a handy reminder of the need for lawyers to only bring proceedings that have some merit, and not for an ulterior motive of causing undue delay.

The perils of social media for twits — Sterling Law QLD

The laws of defamation apply to social media as much as they apply anywhere else: A FORMER high school student has been ordered to pay $105,000 to a teacher for writing defamatory remarks about her on social media in what is believed to be Australia’s first Twitter defamation case to go to trial. Former Orange High School…

The perils of social media for twits — Sterling Law QLD

High Court upholds freedom to contract casually

The High Court has upheld the casual nature of the employment of a labour hire worker by looking to the terms of the contracts of employment.

Robert Rossato was employed by WorkPac, a labour-hire company pursuant to a series of six contracts, or “assignments” between 28 July 2014 and 9 April 2018, when he retired. During that time, WorkPac provided his services to Glencore at one or other of the Collinsville and Newlands mines. Each contract was entitled “Notice of Offer of Casual Employment – Flat Rate” except for the third contract, which was entitled “Notice of Offer of Casual Employment”. At all relevant times, WorkPac treated Mr Rossato as a casual employee.

On 2 October 2018, in reliance on the decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131, Mr Rossato wrote to WorkPac claiming that he had not worked for it as a casual employee, and claiming that he was entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken by him during his employment. These entitlements were said to be due under the Act and the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 (“the Enterprise Agreement”), which governed Mr Rossato’s employment.

WorkPac denied Mr Rossato’s claims, and promptly filed an originating application in the Federal Court of Australia seeking declarations that throughout his employment Mr Rossato had been a casual employee for the purposes of the Fair Work Act and the Enterprise Agreement.


Read full story:
https://sterlinglawqld.com/high-court-upholds-freedom-to-contract-casually/

Time to sue: The law of limitation periods

Limitation periods in the law impose time limits within which types of civil proceedings should ordinarily be commenced. In commercial litigation, statutes of limitations impose most of the limitation periods. In Queensland, the statute of limitations is the Limitation of Actions Act 1974.

Barring the remedy only

It is commonly thought that limitation periods prohibit a person from suing out of time, however this is inaccurate.

Limitation periods are not a mandatory prohibition on suing that bar the Court from having jurisdiction (power) to hear the claim. They instead provide a defence available for defendants when proceedings are brought out of time, which must be specifically pleaded to be upheld. Unless a plaintiff can show that an exception would overcome the limitation period hurdle, the defence, once pleaded, must defeat the parts of the claim brought out of time.

When the cause of action arises

Time starts to run for the purposes of the limitation period once the cause of action arises/accrues.

The cause of action ordinarily arises as soon as a plaintiff is entitled to sue. Usually, this means when the plaintiff has suffered actual loss, because the wrongful acts or omissions said to have caused the loss must have occurred before the loss was suffered. From that moment, the relevant limitation period starts to run.

Common limitation periods in Queensland

The Limitation of Actions Act 1974 (Qld) imposes the following limitation periods in Queensland:

·       6 years for an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person

·       6 years to enforce an award or recognisance

·       6 years for an account or a specialty

·       12 years to enforce a judgment

·       2 years to recover a penalty or forfeiture, or a sum by way of a penalty or forfeiture

·       1 year for defamation actions

·       3 years for personal injury, save for cases of a dust-related condition or child abuse

·       12 years to recover land

·       2 years for action for contribution under the Law Reform Act 1995 or 4 years after the limitation period for the principal action, whichever is the earliest.

In Brisbane City Council v Amos [2019] HCA 27, the High Court unanimously held that where a cause of action is subject to two or more limitation periods, a Defendant is entitled to plead and rely on the shorter limitation period.

In some circumstances, the limitation period will be or can be extended.

Read full article here: https://sterlinglawqld.com/the-law-of-limitation-periods

Types of appeals in Queensland and the Federal Courts

Not all types of appeals in the law are the same.


Different rules and principles in how they are conducted and decided apply, depending on the nature of the appeal in question.

Appeals in the law are creatures of statute: Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 at 720-721, Mickelberg v The Queen [1989] HCA 35, Deane J at [4], R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20]. In other words, they never existed at common law, but were instead…

Types of appeals in Queensland and the Federal Courts — Sterling Law QLD

How you can save on legal fees — Sterling Law QLD

This post discussed why legal fees tend to be so high. The good news is that as a client there are a number of ways you can reduce your legal fees, as the rest of this article will show. Be proactive Most clients only come to see a lawyer when they are in legal trouble. Unfortunately, by…

How you can save on legal fees — Sterling Law QLD
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