By Katy Barnett

Thorne v Kennedy Case Page

In Thorne v Kennedy, the High Court unanimously struck down both a prenuptial and a postnuptial agreement (the plurality on the basis of undue influence and unconscionable conduct, and Nettle J and Gordon J on the basis of unconscionable conduct alone). The agreements had been entered into by a impoverished 36-year-old woman from overseas (known by the pseudonym ‘Ms Thorne’) who married a 67-year-old wealthy Australian property developer (known by the pseudonym ‘Mr Kennedy’). Prior to and after the wedding, Ms Thorne agreed that she would have very little claim on Mr Kennedy’s assets (worth between $18 million and $24 million) if her relationship with her husband broke down because he wanted his money to be kept for his three children from his first marriage. Ms Thorne’s English was poor; she had no assets; she was desperate to have a child; her Australian visa was about to expire, and she would not be able to get a new visa without her marriage; and Mr Kennedy asked her to sign the prenuptial agreement four days before the wedding, when all her family had come to Australia from her home country to attend. She was told that if she did not sign the wedding would not go ahead and the relationship would end, and so she signed the agreement. This was despite the fact that the independent solicitor whom Mr Kennedy arranged to advise Ms Thorne implored her not to sign it and pronounced it the worst agreement she had ever seen. Pursuant to the prenuptial agreement, Ms Thorne was obliged to sign a postnuptial agreement in the same terms, which she did, although the independent solicitor again advised her not to. Ms Thorne and Mr Kennedy divorced just under four years later.

Some have argued that this signals the death-knell to ‘binding financial agreements’ under pt VIIIA of the Family Law Act 1975 (Cth) (eg, here) because there will almost never be equality between partners, whereas others (eg, here and here) argue that binding financial agreements will still be viable, but care must be taken with the circumstances of entry into such agreements. Continue reading →

By Joanna Bloore

The forthcoming case of Thorne v Kennedy will provide the High Court with a rare opportunity to consider and clarify the nature of the doctrines of undue influence, duress, and unconscionable dealing, and the relationships between them. It is increasingly argued that undue influence, like duress, is a vitiating factor within the law of unjust enrichment. By contrast, unconscionable dealing is generally accepted to constitute an equitable wrong, operating independently of the law of unjust enrichment. The three doctrines often suggest themselves from the same set of facts, and the appearance of the language of ‘unconscionability’ in unjust enrichment cases has introduced further confusion. There are, however, important distinctions between the three forms of claim. The body of this post examines the doctrines of duress, undue influence, and unconscionable dealing. The nature of each doctrine, and the relationships between them, are explored through their potential application to the facts of Thorne v Kennedy.

The dispute is set to be heard in the High Court on appeal from the Full Family Court in Kennedy v Thorne [2016] FamCAFC 189. Mr Kennedy was an Australian property developer with assets valued at $18 million. Ms Thorne lived overseas, and occupied a position of relative disadvantage (with poor English skills, relative poverty, and fragile immigration status). The two met through an online dating site. After meeting in person, they decided to get married and Ms Thorne accompanied Mr Kennedy back to Australia on a tourist visa. About a week before the wedding, and after Ms Thorne’s family had travelled from overseas to attend, Mr Kennedy insisted on the signing of a prenuptial agreement as a condition of their marriage. His aim was to preserve the economic wellbeing of his children. Ms Thorne received independent legal advice that the agreement was ‘no good’, but she signed it nonetheless. Four years later, the parties divorced, and Ms Thorne sought to set aside the prenuptial agreement. Continue reading →

By Dan Meagher

Aubrey v The Queen Case Page

If a person passes a sexually transmitted disease to their partner, do they ‘inflict’ harm on that other person? In Aubrey v The Queen [2017] HCA 18, the High Court opted to read the word ‘inflicts’ in a NSW statute in light of the way twenty-first century readers would understand the link between sex and disease, rejecting an earlier, more limited reading by nineteenth century judges. This choice of statutory approaches left Michael Aubrey to serve a five year prison term for recklessly passing HIV to his unwitting lover in 2004.

Are Australian Statutes ‘Always Speaking’ …?
In Aubrey, the High Court applied the ‘always speaking’ approach to statutory interpretation to s 35(1)(b) of the Crimes Act 1900 (NSW). As a consequence, it was held that a person having sexual intercourse with another causing them to contract a grievous bodily disease could amount to the infliction of grievous bodily harm. In doing so the Court overturned the settled understanding of what constituted the ‘infliction of grievous bodily harm’ within the meaning of s 35(1)(b). That statutory meaning — which had stood for more than a century — was ‘that the “uncertain and delayed operation of the act by which infection is communicated” does not constitute the infliction of grievous bodily harm’ (Bell J, at [55]). As was noted in the joint judgment of Kiefel CJ, Keane, Nettle and Edelman JJ, ‘until this case, Clarence [the 1888 authority for that settled statutory meaning] had not been distinguished or judicially doubted in New South Wales’ (at [35]).

The joint judgment offered nine reasons why Clarence should no longer be followed. A central plank of that reasoning — and the focus of this brief comment — was the endorsement and application of the ‘always speaking’ approach Continue reading →

By Matthew Bell

Southern Han Case Page

The December solstice of 2016 was celebrated in diverse ways around the world. At Stonehenge, druids and pagans greeted the mid-winter dawn. In Australia, construction lawyers were digesting the first High Court judgment on the Building and Construction Industry Security of Payment Act 1999 (NSW): Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52.

The Court (Kiefel, Bell, Gageler, Keane and Gordon JJ in joint judgment) confirmed that the existence of a Reference Date under a Construction Contract is a precondition to the making of a valid Payment Claim (the capitalised terms are defined under the Act — more on that shortly). In doing so, the Court overturned the decision of the NSW Court of Appeal ([2015] NSWCA 288), effectively restoring the declaration by Ball J at trial ([2015] NSWSC 502) that the adjudicator had no jurisdiction to make a determination under the Act on a purported payment claim.

Ball J’s conclusion rested upon his Honour’s interpretation of the contract used here (AS4000-1997, a widely-used, construct-only form of construction contract) as having exhausted its capacity to generate ‘Reference Dates’ (which trigger the right to make a payment claim under the Act). This was based on alternate hypotheses: either the contract had been terminated for repudiation, or (if the contract remained on foot) the ‘show cause’ procedure then in effect suspended the right to claim payment.

The judgment is on a narrow point, but has wider significance. This is because the NSW Act has, as was noted by Senior Counsel for the appellants, Continue reading →

By Tamara Hamilton-Noy

Kilic Case Page

In Victoria in 2014, there were 32 victims of family and domestic violence-related homicide (5 per million persons) and 1,321 victims of family and domestic violence-related sexual assault offences (23 victims per 100,000 persons). There were seven times as many female victims as male victims in Victoria of family and domestic violence-related sexual assault.

On 27 July 2014 a young woman drove up to the home of 22 year old Yavaz Kilic with a group of friends. She had been in a relationship with Kilic and was 12 weeks pregnant to him. The relationship was later described as having been controlling and ruled by his paranoia. Kilic had commenced using drugs at the age of 13 and had had a period of homelessness at 18 years of age. He had worked previously as a labourer. He had previous convictions for weapons related charges, but no violence related priors. As of 27 July 2014 he was reported to have been using ice for several days.

The woman and her friend, Mr B, went to get out of the car at which time Kilic ran across the road in an aggressive manner, holding a samurai sword above his shoulders and pointing it at Mr B. He shoved the sword through the open window towards the steering wheel and yelled at the people in the car, including yelling at the young woman, “You’re just a fucking slut”.

Mr B followed Kilic into his front yard and Kilic filled a bottle of water and swung the sword at it, stating ‘This would take some cunt’s head off’. Mr B followed Kilic into the house and hid the sword inside the house. While Mr B went to the bathroom, Kilic went Continue reading →

By Dr Lael Weis

Cunningham Case Page

How could the same constitutional provision that Darryl Kerrigan famously invoked to protect his ‘castle’ be relied upon by former Members of Parliament to protect ‘gratuitous’ — in the sense that they go above and beyond entitlements based on superannuation contributions — retirement benefits against any possible future reductions? As news coverage of the High Court’s recent decision in Cunningham v Commonwealth [2016] HCA suggests, the very contention is offensive to public sensibilities.

The constitutional provision in question, s 51(xxxi), protects individuals from the arbitrary acquisition of property by requiring that the acquisition of property by the Commonwealth be ‘on just terms’. Yet it seems highly counterintuitive to think of gratuitous retirement benefits — funded by taxpayer money, no less — as ‘property’ that the Constitution affords protection to. As one opinion piece scoffed, ‘you could hardly be blamed for imagining a snort of derision from the Bench at the implication that the [former parliamentarians] believed it was their own money they were fighting for.’ Surely they’re dreamin’ … or are they?

In this blog post I will briefly comment on the seemingly odd character of the constitutional challenge, explaining why Cunningham is not in fact that odd as far as s 51(xxxi) cases go. I will then offer a few remarks on what the commonplace character of challenges of this kind tells us about the broader challenges that confront the High Court’s jurisprudence in this area, and why the Court didn’t exactly tell the plaintiffs to ‘dream on’.

‘Property’ protected by the constitutional guarantee

In reality, cases like Darryl Kerrigan’s — which involve straightforward real property interests — are atypical for Australian constitutional property law. Australian constitutional property law much more frequently Continue reading →

By Gabrielle Appleby and Alysia Blackham

On 16 June 2016, retired High Court judge, the Hon Michael McHugh AC QC delivered his report as Commissioner of a Special Commission of Inquiry into the Greyhound Racing Industry in NSW. The report found ‘overwhelming evidence of systemic animal cruelty, including mass greyhound killings and live baiting’, and concluded that the industry had ‘fundamental animal welfare issues, integrity and governance failings that can not be remedied.’ Relying on the report, the NSW Government moved to shut down the greyhound racing industry, with legislation introduced to effect a full closure by 1 July 2017. In a move described by the NSW Opposition as the ‘mother of all backflips’, the NSW Premier has now confirmed that greyhound racing will not be banned after all, with ‘tough penalties’ to be introduced to ensure animal welfare instead.

Banning greyhound racing is a politically and emotionally charged issue. Prior to the government’s backflip, the NSW Greyhound Racing Industry Alliance criticised the Special Commission of Inquiry report as being ‘biased and seriously flawed’. It argued that racers and trainers were denied procedural fairness. There were allegations that the report was a ‘stitch up’, with the result predetermined by NSW Premier Mike Baird. The greyhound industry even brought a claim in the NSW Supreme Court, seeking to have the report declared invalid. Others applauded the ban, and saw Continue reading →

Australia’s law students are currently sitting their first semester exams. Some of them might be examining hypotheticals like this one:

D shot and wounded the V, who was a police officer, while V was lawfully executing a search warrant in company with other police officers on premises in close proximity to D’s home. The shot struck V in the arm, thereby causing him a serious but non-fatal gunshot wound. In the course of the fire-fight which ensued, one of the other police officers fired a shot which was intended for D, but which unfortunately instead hit V in the neck, thereby inflicting a wound from which he later died. Assume that when D fired at V, D honestly believed that V was someone posing as a police officer who was intent on robbing the D and might have posed a serious risk to the D’s safety.

That exam question could earn the examiner congratulations for her inventiveness, but the next one would probably earn her a meeting with her Dean:

D moved to stab V in the chest but she asked him not to stab her there and he rolled her over and stabbed her a number of times in the back. V believed her only chance to escape was to calm D and weaken him. She said, “If we are going to do this together, then I should have a turn with the knife.” The tip of the knife D then had had broken and was embedded in V’s back so D grabbed another knife from the kitchen, handed it to V and said “Okay” and lay on his back. V stabbed D in the stomach, giving an extra shove to make sure the knife was in deep and she twisted it. It appeared that some of D’s intestines came out, D remarking “That was a good one.”

Adding further details – that D was a former contest on Australian Survivor and that, during D’s attack, a real estate agent entered the flat to open it for inspection, saw ‘red liquid’ everywhere, and left, seemingly without calling the police – may well leave the lecturer without a job. But, as Mark Twain is reputed to have said, ‘the difference between fact and fiction is that fiction must be believable.’ Or, as the late Han Solo said, ‘it’s true, all of it’.

The victims of crime in the above two cases were Bill Crews, a 26 year-old police constable whose parents recounted to the coroner their surprise and pride when their son told them three years earlier that he had got in to the police force and then sat and watched video of his last moments, and Samantha Holland, aged 23 at the time, who was stabbed at least 26 times before she escaped over a balcony and will suffer physical and psychological scars for life, and who sobbed in court as her ex-boyfriend was sentenced. The defendants were Phillip Nguyen, then 55, whose first wife was murdered a decade earlier and whose second marriage failed while he was on remand for killing Crews, and Joel Betts, then 30, a victim of childhood sexual abuse and violence who faces a lifetime of incontinence due to the bowel injury he incurred while stabbing Holland. Each recently lost their final appeals in the High Court. Because both defendants pleaded guilty, the Court’s task was not the criminal law student’s task of applying the rules of criminal responsibility to these strange facts. Rather, the nation’s top judges faced an infinitely harder task: assessing whether the punishment each offender was given fitted their unusual crimes. Continue reading →

By Martin Clark

Bell Group Case Page

The High Court’s judgment in Bell Group was a nice rendition of the well-told story about s 109 of the Constitution. Section 109 provides that ‘[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ Western Australian passed a law to create a body that was empowered to finally determine the liabilities owed to various creditors of the Bell Group companies in the fallout of their liquidation, the long saga of which is detailed by Katy Barnett here and here. The High Court held that this law was invalid because it conflicted with the federal tax laws, which created the rights of and liabilities owed to another government and another office holder in relation to these companies: the Commonwealth and the federal Commissioner of Taxation. As I wrote shortly after the decision came down, the plurality judges (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ) held that:

The Authority’s purportedly absolute discretion to determine the existence of a liability of a WA Bell Company and to quantify that liability and the Governor’s powers to extinguish liabilities that would otherwise be owed to the Commonwealth meant that the Bell Act effectively created a scheme that stripped the Commonwealth’s tax debts of their existence, quantification, enforceability and recovery under the Tax Acts (at [57]–[60]). Because it overrides the Commonwealth’s rights under the Tax Acts as a creditor of the WA Bell Companies, the Bell Act alters, impairs or detracts from the rights accrued to the Commonwealth under the Tax Acts (at [61]).

The day after the High Court handed down Bell Group I heard the eminent British historian Gareth Stedman-Jones speak on the meaning of ‘dictatorship’. What followed was a great rendition (which I’ll recollect poorly shortly) of a well-told story in the history of political thought — the origins and development of the office of ‘dictator’ in Rome and beyond.

In this post, I attempt to make the otherwise fairly routine decision in Bell Group a little more interesting by framing it around the content of Stedman-Jones’s paper. This might seem a bit esoteric: what could the two have to do with each other? But I think that bringing Bell Group and the idea of ‘dictator’ together suggest one way in which the case is interesting: as a modern Australian episode in the long global history of the relation between discretion and systems of law. That relation is of fundamental importance to public law in general, and reflects some foundational aspects of the Australian constitutional system that were at play in Bell Group. Continue reading →