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Court in the Act
31 January, 2004  
A lawyers' construct entirely without merit

Costs in Melbourne’s version of Flower & Hart case due to be heard on March 25. “Unmeritorious” litigation could prove expensive, for lawyers … The High Court’s thinking on the challenging issue of gay refugees was bound to isolate the men from the chaps


Ehoes of Flower & Hart and the more recent instance of Emanuel Management rent the air.

imageVictorian law shop Marshalls & Dent and silken counsel Clarinda Molyneux QC (right) are the latest subjects of judicial admonishment in a December judgment of Peter Heerey in the Federal Court.

The matter involved a long-running dispute between Susan Reid and her brother John Hubbard over the spoils of their father’s estate.

A Supreme Court of Victoria hearing in October this year found that Hubbard had breached his duty as executor and trustee. He was ordered to pay Mrs Reid nearly $5.5 million – her half of the residuary estate – as well as compound interest and costs on an indemnity basis.

Mrs Reid and her son Michael embarked on an appeal against a Federal Magistrate’s ruling not to set aside a bankruptcy notice served on Hubbard by his former solicitors, Strongman & Crouch.

Hubbard had failed to honour a default judgment issued by the Victorian County Court in July this year for $79,293.80 in lawyers’ fees, disbursements and accrued interest.

In the process, the Reids’ lawyers alleged a number of beastly things.

They claimed Hubbard owed no debt to Strongman & Crouch, that the firm had filed “unmeritorious defences”, the bankruptcy notice was an abuse of process, having been issued for an improper purpose – to pressurise the appellants to settle the Supreme Court action – and there had been collusion between Hubbard and his solicitors in all of the above.

None of this impressed Peter Heerey who heard the appeal. He found many of the appellants’ submissions “inaccurate” and the conduct of Ms Molyneux, their counsel, in particular: “below the standard that the court and litigants are entitled to expect.”

He thought the appellants’ case as “beset not only with improbability, but also internal inconsistency”.

Justice Heerey agreed with Diana Bryant CFM, that Strongman & Crouch had “reasonable grounds for believing Mr Hubbard to be insolvent” and they were justified in procuring the issue of the bankruptcy notice.

“This appeal, like the original application, was entirely without merit and should never have been brought,” said Heerey.

A costs hearing is adjourned to March 25 before Heerey who will determining not only whether the appellants pay the costs on an indemnity basis, but also the tantalising question of whether such costs are to be paid personally, in full or in part, by Ms Molyneux and Marshalls & Dent.

The judge concluded by making the following trenchant criticisms:

“Serious allegations of professional misconduct, such as colluding to effect an abuse of process, were made without any proper basis.

The nature of the appellants’ case suggests that it was a lawyers’ construct rather than a presentation of factual allegations of the client.

The comprehensive rejection of the case at first instance made the unthinking repetition of allegations on an appeal all the more reprehensible.”

Tsk. Tsk.

It’s all a matter of discretion

If ever there was a case that showed just how hard it is to pigeon hole High Court judges into different “camps” and methods of approach, it must be the discreetly named appeals of S395/2002 and S396/2002.

Indeed, the judges’ interpretation of “discretion” was at the heart of the appeals by two Bangladeshi blokes who told the court that they bat from the Paddington end.

Justices McHugh and Hayne, no less, were on the same team as Justices Kirby and Gummow.

The two Bangladeshi’s had appealed against a decision by the Refugee Review Tribunal not to grant them protection visas. The RRT decision had been upheld by Lindgren in the Federal Court.

The appellants claimed they feared persecution for their homosexuality. They told the tribunal they had been ostracised by their families, attacked by Islamic fundamentalists and finally sentenced to death by stoning by a religious council. (One of the men also claimed he lost his job after raping several young men at his workplace.)

The RRT believed none of it, finding:

”[The appellants] lived together for over four years without experiencing any more than minor problems with anyone outside their own families. They clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.”

This appeared to be good enough for “Smiler” Gleeson in his separate judgment. He dismissed the appeal in four pages, saying the appellants had “misread” the tribunal’s reference to “discreet” behaviour. It wasn’t a “requirement”. The tribunal wasn’t saying that if they stopped behaving like pooves nothing untoward would happen to them. Not at all.

However, the tribunal’s assumption that persecution could be avoided if only they lived “discreetly” drew plenty of flack from Kirbs and McHugh:

“The Convention (relating to the status of refugees) would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors.”

They said the tribunal failed to give proper consideration to what “might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live”.

Which, according to the tribunal’s own findings would range from “being disowned by one’s family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police”.

Not much joy there.

Kirbs and McHugh went on to criticise the tribunal for dividing Bangladeshi gays into two types – discreet and non-discreet. “It did not follow that discreet homosexual men would not suffer persecution.”

Gummow and Hayne were of a similar mind on this point, calling it a false dichotomy and an error in law.

They went to say that while the tribunal accepted it was “not possible to live openly as a homosexual in Bangladesh,” it had failed to ask the critical question – why?

Furthermore, they found that, “the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity”.

imageThis expansive and enlightened thinking got short shrift from the keepers of the flame of strictness in matters legal and moral – “Tubby” Callinan and “The Diceman” Heydon (right).

They said the question was whether the appellants’ “mode of conduct was voluntarily chosen” and clearly they had chosen “to live … quietly without flaunting their homosexuality”. (The word “flaunting” is a bit of a give-away here.)

Tub and Dice went on:

“These were not men who wished to proclaim their homosexuality. Living as they did, they were not oppressed. Discretion, it was put, was purely a matter of choice and not of external imposition. No one required of them, as Lindgren J pointed out, ever to modify their behaviour.”

These two clearly weren’t impressed by “the stories of homosexual rape which one of them, the elder, recounted”, or the “implausible and inconsistent evidence” the appellants presented to the tribunal.

Tub and Dice drew a fine distinction between persecution and disapproval and reminded us, “those who drafted the Convention were not seeking to guarantee all human rights”.

Isn’t that comforting?

Anyway, what could have been a bold opportunity for the court to get behind the Pacific Solution by drawing a line in the shore against boatloads of gay Islamic refugees has been frittered away.