Justice\nWhite of the Federal Court had a field day awarding Senator Hanson-Young\n$120,000 in defamation damages stemming from then-Senator Leyonhjelm\u2019s call for\nSenator Hanson-Young to \u201cstop shagging\nmen<\/em>\u201d. Meanwhile, the Victorian Court of Appeal let Jesus take the wheel, speeding\ndown the highway to judicial and technological purgatory with a partially live-streamed\n2:1 decision in the convict Cardinal\u2019s conviction appeal. <\/p>\n\n\n\n Throw\noff your cassock, kick your feet up, and pray for rain; these seven cases are some\nof the most shocking<\/a> from the legal year 2019. <\/p>\n\n\n\n In\n2017, one rhetorically-blessed Sydneysider purported to citizen\u2019s\narrest Uber drivers<\/a>. Not to be outdone, in 2018 a Melbournite attempted to\nprivately prosecute Aung San Suu Kyi, State Counsellor of Burma, in the Melbourne\nMagistrates\u2019 Court. Attempting to prosecute a foreign politician is always\ngoing to be a sticky affair\u2026 <\/p>\n\n\n\n In\n2018, Taylor attended the Magistrates\u2019 Court with a charge-sheet and draft summons\nalleging that Counsellor Suu Kyi had contravened section 268.11 of the Criminal Code<\/em> (Cth) (Code) and had\ncommitted crimes against humanity, specifically the deportation or forcible\ntransfer of Burma\u2019s Rohingya. Maximum sentence: 17 years. <\/p>\n\n\n\n Luck\nwas not on Taylor\u2019s side. Magistrates\u2019 Court policy for private prosecutions delays\nfiling charge-sheets and the issue of summonses until review by a Magistrate. Concurrently,\nTaylor also emailed the Attorney-General of the Commonwealth (AG) requesting consent\nto the private prosecution under section 268.121(1) of the Code. <\/p>\n\n\n\n The\nAG \u2013 unsurprisingly \u2013 did not<\/em> consent.\nSo, we end up in the High Court with Taylor seeking to quash the decision and\nforce reconsideration. By special case on stated questions we then arrive\nbefore a full court. <\/p>\n\n\n\n At\nissue was the intersection of section 13 of the Crimes Act 1914<\/em> (Cth) (permitting private prosecutions) and section\n268.121 of the Code (requiring the AG\u2019s consent). It was the end for Taylor,\nwith the majority eventually holding: \u201c[t]he\ndecision in fact made by the <\/em>[AG] not\nto consent \u2026 was the only decision legally open\u201d<\/em>. <\/p>\n\n\n\n While\nour unlucky punter may have jumped the gun attempting to snare Suu Kyi in an\nAustralian jurisdiction, the State Counsellor appeared at the ICJ on 10 &\n11 December to respond to allegations of genocide on a case brought by Gambia. The\nICC has also approved an investigation into genocide perpetrated by the Burmese\nstate. <\/p>\n\n\n\n While\nwe\u2019re on politicians (mostly so we can move past them), our own best and\nbrightest continued their pattern of blatant disregard for any form of moral or\nlegal propriety. When they aren\u2019t running off with staffers, some of our political\nleaders also throw sexual innuendo at their colleagues. Well played, Canberra. <\/p>\n\n\n\n Senator\nHanson-Young alleged that four publications by then<\/em>-Senator Leyonhjelm conveyed defamatory meanings: (i<\/em>) that she was a hypocrite for claiming\nall men were rapists but sleeping with them; (ii<\/em>) that she had made the claim all men are rapists, and; (iii<\/em>) that she was a misandrist in\npublicly claiming all men are rapists. <\/p>\n\n\n\n The\nso-called \u201cpromiscuity imputation\u201d was not separately pursued by Senator Hanson-Young\nbeyond her Concerns Notice, where it was put that there was an imputation by\nthe respondent that the Senator \u201cis a\nslut, shagging men indiscriminately<\/em>\u201d. However, while dropped, Justice White\nconsidered the promiscuity imputation \u201c\u2026\nintrinsically linked, and forms part of, the imputation that the applicant is a\nhypocrite<\/em>\u201d. <\/p>\n\n\n\n In\ndescending into that rabbit hole, counsel for the respondent put a foot in it\nwith some unreservedly withdrawn off-colour questioning: \u201cWell, you say that everyone knows what slut<\/em>\u2011<\/em>shaming\nmeans. Would you agree with the proposition that the expression \u201cfat<\/em>\u2011<\/em>shaming\u201d is\nonly capable of being used in respect of a person who is fat?<\/em>\u201d. <\/p>\n\n\n\n Senator\nHanson-Young walked away to the tune of $120,000 damages for non-economic loss\u2026which\nmay go some way to easing the sting of the imputations, but suspicions are the\n\u201cw\u201d meant more than the money. <\/p>\n\n\n\n Love\nor hate Senator Hanson-Young, she should not have to endure sexually charged insults\non the floor of the Senate; broadly repeated across Australia\u2019s media landscape.\nThe saga between then-Senator Leyonhjelm and Senator Hanson-Young prompted some\nsoul searching over who we\u2019d voted in.<\/p>\n\n\n\n From\none group of heavy hitters to another; while criminal barrister Nicola Gobbo\nmay have dominated bar-related headlines for the wrong reasons throughout 2019,\nit was a NSW barrister\u2019s mission to get paid that caused the biggest legal\nsplash. In Pentelow<\/em> the High Court obliterated\nthe Chorley<\/em> exception \u2013 for everyone.<\/p>\n\n\n\n Legal\ncosts, eponymously, may only be obtained by legal\n<\/em>professionals. A self-represented litigant is not, usually, also a legal\nprofessional and may not recover \u201crecompense\nfor the value of [their] time spent in litigation<\/em>\u201d. The Chorley<\/em> exception (from London Scottish Benefit Society v Chorley<\/em>\n(1884) 13 QBD 872) had allowed solicitor<\/em>\nself-represented litigants to recover legal costs in recompense for their time\nspent in litigation. So far, so easy.<\/p>\n\n\n\n The\nessential question in Bell Lawyers Pty\nLtd v Pentelow<\/em> was whether the Chorley<\/em>\nexception should be extended to barristers. At issue was one barrister seeking\nrecovery of legal costs in recompense for the time she spent assisting\nsolicitors and senior counsel in her own<\/em>\nmatter against Bell Lawyers Pty Ltd for unpaid fees. <\/p>\n\n\n\n Not\nonly was the High Court unanimously not <\/em>convinced\nthat it should extend Chorley <\/em>to\nbarristers, but a majority (6:1) considered that the Chorley<\/em> exception should be abolished entirely. Kiefel CJ, Bell,\nKeane and Gordon JJ joined together in their condemnation, stating: \u201cit is an affront to the fundamental value of\nequality of all persons before the law<\/em>\u201d and \u201cit should not be recognised as a part of the common law of Australia<\/em>\u201d.<\/p>\n\n\n\n Word\non the street is that drinks were on Bell Lawyers that Wednesday. <\/p>\n\n\n\n Speaking\nof drinking, the technology team at the VSCA may have needed a few after what\nmust have been a Scottish-hogsheads\u2019 (large, potentially even obscene) volume of\ntraffic hit the Court website for the Pell\n<\/em>decision. <\/p>\n\n\n\n The\nshock value of the Cardinal\u2019s appeal was grounded in the media ado over the\ndissent of Justice Weinberg. For legal watchers though, dissent is part and\nparcel. On the Cardinal\u2019s offending, Weinberg JA considered: \u201cthere\nis, to my mind, a \u2018significant possibility\u2019 that the applicant in this case may\nnot have committed these offences<\/em>\u201d. <\/p>\n\n\n\n Weinberg JA upheld the appeal on the Cardinal\u2019s first\nof three grounds \u2013 that the verdicts\nwere unreasonable and couldn\u2019t be supported by the evidence \u2013 stating: \u201cin my respectful opinion, these convictions cannot be permitted to\nstand. The only order that can properly\nbe made is that the applicant be acquitted on each charge<\/em>.\u201d<\/p>\n\n\n\n His Honour did not strictly need to deal with\ngrounds two and three of the appeal, which related to the conduct of the trial\ngenerally. However, invoking Jones v the Queen\n<\/em>for the principle a criminal appeal court should duly exercise its full jurisdiction\nwhen invoked unless a ground of appeal is clearly untenable, or the party is\nsuccessful on another ground, Weinberg JA joined Ferguson CJ and Maxwell P in refusing\nleave on grounds two and three. <\/p>\n\n\n\n Unsurprisingly,\nthe convict cardinal\u2019s crack creative collective made an application for\nspecial leave to the High Court \u2013\nat which point Australia\u2019s media tied itself in knots trying to interpret exactly\nwhat was happening when Gordon and Edelman JJ ordered the application before a\nFull Court as on an appeal in [2019] HCATrans 217.<\/p>\n\n\n\n From\nthe clergical to the clerical, book build in class action litigation is due to\nphoenix itself from the ashes of BMW\nAustralia Ltd v Brewster<\/em> after the HCA dropped a Christmas bombshell on the\nlitigation funding industry. <\/p>\n\n\n\n If\nyou missed the biggest legal news of December, the HC held that sections 33ZF\nof the Federal Court of Australia Act\n1976<\/em> (Cth), and 183 of the Civil\nProcedure Act 2005<\/em> (NSW) did not extend to permitting the making of an\norder \u201cin favour of a third party with a\nview to encouraging it to support the pursuit of [a] proceeding<\/em>\u201d. Big oops.\n<\/p>\n\n\n\n This\nwas, as put by Kiefel CJ, Bell and Keane JJ, markedly different from the \u2013 admittedly broad \u2013 power contained within the\nsections allowing a court to make orders to \u201censure that the proceeding is brought fairly and effectively to a just\noutcome<\/em>\u201d. Common fund orders (CFOs) had assured a particular level of\nreturn on funder\u2019s investments. <\/p>\n\n\n\n Prior\nto CFOs, funders were required to book build; a process where funders would\ncanvass interest and assess the viability of a proceeding. CFOs relieved many\ncommercial anxieties by fixing a funder\u2019s return as a proportion of money\nrecovered on success, proportioning share between members, and prioritising the\nfunder\u2019s liability. <\/p>\n\n\n\n The\nplurality was not amused: \u201cthere is no warrant to supplement the\nlegislative scheme by judicial involvement to ease the commercial anxieties of\nlitigation funders or to relieve them of the need to make their decisions\u201d. <\/em><\/p>\n\n\n\n Merry Christmas, litigation funders. <\/p>\n\n\n\n Briefly\nback on criminal law, the HC was also busy with a raft of cases under section\n45 of the Crimes Act 1900<\/em> (NSW); aka the\nprohibition of female genital mutilation. A2<\/em>\nalso featured in 2018 as\nit went through the NSWCCA<\/a>.<\/p>\n\n\n\n Not\nonly was there a construction issue related to the word \u201cmutilate\u201d and the permanency\nof resulting injury, in 2019 the legal industry is apparently still playing pin\nthe tail on the donkey with female anatomy. In allowing the appeals, the HC accepted\nthe trial judge\u2019s broad construction, and not the NSWCCA\u2019s narrow one.<\/p>\n\n\n\nStop\nright there, \u201ccriminal\u201d! – Taylor v\nAttorney-General<\/em> (Cth) [2019] HCA 30<\/h2>\n\n\n\n
Make\nlove not war – Hanson<\/em>\u2011<\/em>Young v\nLeyonhjelm (No 4)<\/em> [2019] FCA 1981<\/h2>\n\n\n\n
Did\nwe cost this? – Bell Lawyers Pty Ltd v\nPentelow<\/em> [2019] HCA 29<\/h2>\n\n\n\n
Stairway\nto\u2026 the High Court – Pell v the Queen<\/em>\n[2019] VSCA 186<\/h2>\n\n\n\n
How\nwe casually detonated an entire industry – BMW\nAustralia Ltd v Brewster<\/em> [2019] HCA 45<\/h2>\n\n\n\n
Playing\ndoctor – R v A2; R v Magennis; R v Vaziri<\/em>\n[2019] HCA 35<\/h2>\n\n\n\n