Religious irreligiosity, defamatory machine learning, and an (un)clearly inappropriate forum – 2018 showcased why litigation is sometimes stranger than fiction.
The Local Court of New South Wales held that purported faith in the idea of ‘Freedom’ was analogous to a belief in religion for the purposes of the religious duty exemption to compulsory voting. Confused yet? You’re in good company. So was the District Court of New South Wales about its own jurisdiction, according to a cluster of 2018 cases from that State’s Supreme Court.
These 7 cases are some of the most memorable decisions of 2018.
Agnostic about Agnosticism – Director of Public Prosecutions (Cth) v Easton  NSWSC 1516
While local courts are no strangers to self-represented litigants with novel arguments, it is rarely a forum where arguments about the finer points of the philosophy of religion are heard. It’s even rarer, however, for the courts to side with them.
This is exactly what happened in R v Easton  NSWLC 19. Adam Easton successfully defended his failure to vote because his moral integrity and belief in ‘Freedom’ would be adversely impacted by voting. Despite relying on the religious duty exception to compulsory voting in section 245(14) of the Commonwealth Electoral Act 1918 (Cth), Mr Easton admitted he was actually agnostic. He submitted that his deeply held beliefs and moral code were analogous to and just as tangible as any other faith. Magistrate Heilpern agreed, finding that it would be “simply nonsensical” to recognise a religious objection but not a well-developed moral and conscious agnostic faith.
This shock result was pounced on by the media, who presented Magistrate Heilpern’s decision as an existential threat to compulsory voting. On appeal however, Justice Adams found that religious duty did not encapsulate a devout but avowedly non-religious duty.
Justice Adams also had regard to the ‘unusual circumstances’ of the appeal being brought out of time. The appellant was initially content to cop the decision on the chin as it lacked precedential value, but following the belated publication of reasons it became a matter of public interest to correct the dissemination of potentially misleading information and quell the media giddiness that had arisen around the decision at first instance.
Machine Learning – Trkulja v Google LLC  HCA 25
Defamation was on-trend in 2018. With mouth-watering defamation cases loaded with scurrilous imputations and gossip being heard all over the nation, the High Court of Australia joined in with one of its own when Milorad Trkulja sued search engine giant Google.
Mr Trkulja claimed he was defamed by the way Google’s autocomplete functionality and image results associated him with convicted criminals and well-known gangsters. Unlike previous decisions where the issue was search results merely reproducing imputations made by others, Mr Trkulja’s case directly implicated the output of Google’s algorithms as the defaming content.
Unfortunately, the appeal was against the summary dismissal of Mr Trkulja’s case for having “no real prospects of success” and the High Court did not make any substantive finding other than to say his case is worth hearing.
If (or when) the case returns to court for a full hearing, some interesting questions will be decided and no doubt appealed again: to what extent do Google and its algorithms ‘publish’ information by returning autocomplete predictions and search results? Are such results capable of being defamatory? Should search engines have legislative immunity? And what discussions might this prompt around privacy and the ‘right to be forgotten’ without our past being permanently etched onto the internet?
A Tendency to Confuse – R v Bauer (a pseudonym)  HCA 40
With the seven justices resolving to ‘put aside differences of opinion and speak with one voice on the subject’, the High Court left nothing to chance when it came to the admissibility of tendency evidence in single complainant sexual offences cases.
Last year we wrote that the decision of Hughes v The Queen  HCA 20, similarly concerning tendency evidence, was “unlikely to have completely quelled controversy in this area of law”. It was perhaps the memory (and complexity) of the Hughes decision that explains why R v Bauer contains some of the clearest and most declarative language you’re likely to ever read from the High Court, explaining previous decisions of the court, signposting exactly where the ratio decidendi is and, just for good measure, explaining what directions ought to be given to a jury despite jury directions not being in issue.
The accused was charged with sexual offences against a single complainant. The prosecution wished to adduce evidence by the complainant of uncharged acts as tendency evidence. The prosecution also wished to use each charged act as tendency evidence in support of every other charged act. The High Court allowed the appeal and admitted the evidence, setting aside the orders of the Victorian Court of Appeal.
Noting the lack of clarity of previous decisions and the ‘unsatisfactory’ state of the law, R v Bauer decision is a powerful unanimous statement by the Kiefel High Court.
The Extent of Mutilation – A2 v The Queen  NSWCCA 174
Elsewhere in criminal law, in R v A2 (No 2)  NSWSC 1221 the Supreme Court of New South Wales heard Australia’s first prosecution for female genital mutilation. The appeal was finally heard this year after a large number of interlocutory decisions.
Complicating matters for the prosecution was that the acts charged were described as ‘nicks’ and fell on the lower end of the scale for the offence. The defence argued the conduct did not meet the threshold of ‘otherwise mutilates’ within the Crimes Act 1900 (NSW), s 45(1)(a). However, Justice Johnson ruled that any injury for non-medical reasons to the prepuce and surrounding tissue should be regarded as mutilation.
Further compounding the issue was the counterexample raised by the defence that if any injury for non-medical reasons to the prepuce and surrounding tissue amounted to mutilation, then that would inadvertently capture voluntary cosmetic procedures undertaken by adults. The practical answer offered was that investigative and prosecutorial discretion would provide a natural limit despite the conduct ‘technically’ falling within the statute.
On appeal, new evidence was admitted showing no lasting damage to either of the two daughters who underwent the procedure. This allowed the Court of Criminal Appeal to elegantly sidestep some of the jurisprudentially troubling issues raised and decide the case on a factual basis. In the 1,196-paragraph judgment, the court reined back the original decision and allowed the appeal ruling that while a ‘nick’ may be sufficient, ‘mutilation’ did not mean any injury to any extent.
“A Surprising Proposition” – Southern Classic Group Pty Ltd (t/as Southern Classic Cars) v Arch Underwriting at Lloyds Ltd (No 2)  NSWSC 1530; Nova 96.9 Pty Ltd v Natvia Pty Ltd  NSWSC 1288; Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd (t/as Bellini Bar)  NSWDC 160; Australian Wholesale Meats (Sydney) v S&R Cool Logistics Pty Ltd  NSWSC 1541
For decades, lawyers across New South Wales have been taking the jurisdiction of the District Court to hear decisions about commercial transactions for granted. This was the ‘surprising proposition’ established by a series of cases that identified a ‘lacuna’ left open by an unfortunate mixture of different statutes and court rules.
Section 44 of the District Court Act 1973 (NSW) conferred on the District Court jurisdiction to hear any proceeding which, had it commenced in the Supreme Court, would have been assigned to the Common Law Division.
However, the effect of the Supreme Court Act 1970 (NSW), s 53, and the Supreme Court Rules 1970 (NSW), r 14.2(1), provided that any dispute arising from a commercial transaction or considering an issue of importance to trade and commerce was to be assigned to the (then) Commercial Division – not the Common Law Division. Accordingly, the District Court didn’t, and never did, have jurisdiction.
This issue reared its head several times over the years but did not cause sufficient consternation until Justice Parker’s decision in The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd  NSWSC 1194 was reported and a spate of 2018 cases brought greater attention.
While the ‘lacuna’ is currently being considered for legislative reform, it remains, through a quirk of the law, that for decades the District Court has been going rogue.
A Casual Misunderstanding – WorkPac Pty Ltd v Skene  FCAFC 131
While the ‘gig economy’ has been celebrated for disrupting traditional industries by offering convenience, affordability and independence to consumers and service providers, it has also been marked by controversies surrounding underpayment of workers, unsafe work practices and exploitation of vulnerable people.
Underpinning the economic feasibility of the gig economy is the concept of a ‘casual worker’ – a non-permanent, shift-centred arrangement offering limited security and benefits in exchange for a higher base rate of pay.
The Full Court of the Federal Court of Australia delivered a significant decision for casual workers in August after Queensland truck driver Paul Skene successfully argued that, despite being labelled a ‘casual’, the nature of his employment more substantively and practically resembled permanent full-time. Though Mr Skene worked shifts and was employed by a labour hire company, he nonetheless worked a regular and continuous pattern of work for more than two years.
A decision likely to be felt nationwide by industries employing casual workers, WorkPac reinforces a common lesson in all areas of legal practice by emphasising the importance of substance over form in defining the relationships between natural (or legal) persons.
Who Can You Trust? – Commonwealth v Byrnes  VSCA 41
With its genesis in several 2017 cases, Commonwealth v Byrnes was another iteration of the rights and obligations of insolvency appointees dealing with trust assets within an insolvency administration.
Heard before five judges of the Victorian Court of Appeal, the receivers and managers of Amerind Pty Ltd, whose sole activity was carrying on business as trustee of a trading trust, were left with a receivership surplus insufficient to meet all the unsecured creditors’ claims. The issue was whether both the surplus and the corporate trustee’s right to indemnity were trust property or otherwise property of the company subject to the Corporations Act 2002 (Cth), s 433.
Delivering a unanimous joint judgment, the court decided that a corporate trustee’s right of indemnity was property of the company and that an operating surplus fell within the bounds of property secured by a ‘circulating security interest’. Accordingly, s 433 applied to both. In deciding so, the court reversed the judgment of Justice Robson in the Victorian Supreme Court and aligned itself more closely with Justice Derrington’s view in the Federal Court of Australia.
While it won’t make for sensationalist media copy, it is an issue affected practitioners are keeping a very close eye on as a High Court decision looms.
The year in law 2018 was memorable for its legal quirks, with novel arguments making ground and serious issues tried and decided. Many of the cases compiled here will ultimately raise further legal questions that will need to be explored by enterprising courts and practitioners in coming years.