Bounces and buckets – Gretel Tippett and interlocutory determination of limitation periods

Today’s bounce ($0.02 on a random topic) – Gretel Tippett takes out the Australian netball’s most prestigious individual accolade. Go Gretel!

And the bucket ($0.02 on a legal principle) – limitation points in interlocutory stoushes.

Good on Gretel for winning the Liz Elis Diamond. 95%+ shooter! That’s what I call buckettttsssss. She’s a former basketballer in the WNBL, but at around the age of 20 made the switch to netball, and it seems to have paid off!

Now for the bucket. Just say you have a limitation argument – should you run a strike-out or summary judgment application? If it’s a case involving a contingent loss in particular, consider being cautious.

In Wardley Australia Ltd v WA (1992) 175 CLR 514 at 533, the High Court said it was “undesirable” that limitation questions of the kind in that case be decided ahead of a hearing “except in the clearest of cases”. Generally speaking, insufficient was known of the damage and circumstances it was sustained to justify a confident answer to the question of when loss was suffered – which is the date from which time usually runs.

So, as always, think carefully!

JD #bouncesandbuckets

Bounces and buckets – New umbrella and the role of particulars in pleadings

Today’s bounce ($0.02 on a random topic) is my sweet new umbrella. The bucket ($0.02 on a legal principle) is the role of particulars.

Check out my new umbrella. Courtesy of the legendary Justin Wong of Streeton Lawyers! This is my first barristerial one, so I’m excited!

It’s high quality – an ergonomically designed handle, solid metal tip, and a stylish navy blue.

And it even rained this week! That said, I didn’t have it, so I got drenched. Next time!

Now, to particulars. What is their role? In

Goldsmith v Sandilands [2002] HCA 31 at [2], Gleeson CJ said that the facts in issue in a civil case emerge from the pleadings – and facts relevant to facts in issue emerge from the particulars and evidence.

The function of particulars is not to expand on the issues defined by the pleadings, but to “fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on [his or her] guard as to the case [he or she] has to meet and to enable [him or her] to prepare for trial”.

So, think of particulars as providing information about the facts. If a factual matter is important, maybe it should be pleaded as a material fact.

JD #bouncesandbuckets

Bounces and buckets – Equal pay for the Matildas and joining parties

Today’s bounce ($0.02 on a random topic): Equal pay for the Matildas! Great stuff!

The bucket ($0.02 on a legal principle): joinder – when should you do it?

It is being widely reported that the Matildas are about to reach a deal in which they get equal pay as their male counterparts, and share commercial revenue and prize money equally. That’s great news – good stuff by all those involved, and go the Matildas!

Now, joinder – when should someone be added as a party?

In John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131], the High Court answered the question by agreeing with a submission that where the court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined.

So, if someone might be directly affected by the orders sought, that person probably should be a party to the case.

Alright, JD out. #bouncesandbuckets

Bounces and buckets – a tragic injury for Steph Curry, and privilege claims over part of a document

Today’s bounce ($0.02 on a random topic): my favourite player breaks his hand. Oh the humanity!

The bucket ($0.02 on a legal principle): privilege claims over part of a document. Is it possible?

Ah, Steph Curry. Innocently trying to score a bucket in today’s game. And what happens?

A huge Aussie, Aron Baynes, falls on his arm! ARROONNNN whaddya doing!!!

Aron possesses a physique suited to a front rower for Souths, and wood-chopping, but also knows his way around a basketball court.

These things happen I suppose. So, for the next while, I’ll have to get through, somehow.

Which leads me to the bucket – claiming privilege over only part of a document.

Is it all or nothing; or could just say 1 para of a without prejudice letter be excluded from evidence?

On Gladio v Buckworth [2015] NSWSC 922, the latter. At [363]-[366], McDougall J expressed the view that (for WPP) s 131(1)(a) could apply to only part of a letter, unless (for example) the rest of the letter was closely intertwined with the privileged material.

So, it’s not an all or nothing proposition. Important not only for evidence, but also likely discovery, NTPs, etc.

Alright, see ya. JD #bouncesandbuckets

Bounces and buckets – A new season, and pleading fraud

Today’s bucket ($0.02 on a random topic) – it’s felt like forever but finally the NBA is back!

The bounce ($0.02 on a legal principle) – pleading fraud: do it clearly, or not at all.

Ah yes, another season of the NBA is upon us. Should be a cracking one, with off season trades making the league more even than it has been in years.

I’m particularly keen to see Ben Simmons in Philly, and Joe Ingles in Utah – two great Aussies on really good teams. Both playing game 1 today. Welcome back NBA!

Now, let’s talk pleading fraud.

If you’re going to take the very serious step of making the allegation, it must be pleaded distinctly and with particularity and clearly proved – and if you do plead it (or if it’s pleaded against your client), the defendant is entitled to hold the plaintiff to the pleaded case (Krakowski v Eurolynx (1995) 183 CLR 563 at 573).

And, it will generally not be appropriate to mount fraud as a fallback claim, eg to an allegation of misleading conduct (see Forrest v ASIC (2012) 247 CLR 486 at [26]).

So, pleading fraud is one of those things that needs to be committed to fully, or not done at all.

See ya. JD #bouncesandbuckets

Bounces and buckets – New guitar world champ, and the dangers of “does not plead”

Today’s bounce ($0.02 on a random topic) celebrates Aus’s very own new guitar world champ; and the bucket ($0.02 on a legal principle) is a pleading point – the best sort of point!

Congrats to Dylan Reavey, the 2019 Guitarist of the Year.

As a fan of funk, maestros and Mario, it was a cracking way to wake up today to watch him shredding his axe (aka playing his guitar) while wearing a Mario Kart hat and rocking a great hair and moustache combo.

GO DYLAN! Doing us proud.

Now for the bucket.

You’re doing a Defence.

You have to plead to an allegation which is not made directly against your client. Should you “does not plead”?

In Rockcote v FS Architects [2008] NSWCA 39 at [62]-[63], Campbell JA said that a “does not plead” is the same – for pleading purposes – as an admission.

So, when you are “not pleading” to a paragraph, just imagine you’re admitting, and do a gut-check.

Alright see ya. JD #bouncesandbuckets

Bounces and buckets — Liz Cambage and conventional estoppel

Today’s bounce ($0.02 on a random topic) is Liz Cambage, and the bucket (same amount on a legal principle) is conventional estoppel. Woohoo!

Liz is an Aussie basketball player plying her trade in the WNBA. She is very accomplished, being a 3 time all-star, 2018 scoring champion, and, in scoring 53 points, owned the record for the highest total.

A couple of months ago, she posted a compelling article (“DNP-Mental Health”), outlining her struggles with mental illness.

I say good on Liz for doing that. No doubt it was hard to go public with her issues. The more that role models in society lead the way in voicing issues that affect so many, the more things like mental health (or lack of it) get normalised — not stigmatised.

So go #8 Las Vegas Aces!

Now for the bucket. What is conventional estoppel, and what’s a good case?

In Con-Stan v Norwich (1986) 160 CLR 226 at 244, the High Court said that estoppel by convention is a form founded on the conduct of relations between the parties on the basis of an agreed or assumed state of facts (probably now expanding to include a matter of law), which both will be estopped from denying.

This can be a useful doctrine particularly when drafting Defences, so keep it in mind.

JD #bouncesandbuckets

Bounces and buckets — The Great Lauren Jackson and representations in misleading conduct cases

Today’s bounce: Lauren Jackson. A Legend.

20 year career. WNBL: 4 x MVP and 4 x Grand Final MVP . WNBA: 7 x All Star, 3 x MVP, 2 x champion, 3 x scoring champion, finals MVP, 7 x All-NBA first team, and heaps more.

Ms Jackson also appears to be of high character. I think it would behoove the NBL to beg her to get involved in the game — perhaps as a coach of LaMelo at Illawarra, perhaps as the CEO.

Something. No female head coaches in the NBA — Australia should take the lead and see if she wants a gig!

Now for the bucket: my $0.02 on a legal principle.

If you’re pleading a misleading or deceptive conduct case, you have to plead that the naughty defendant made a representation, and it turned out to be misleading, right? Because everybody does, right? WRONG!

As the High Court said in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [102], the focus is on “conduct” not representations.

So next time you’re grappling with this, step back, and think about all the conduct and all the circumstances, and let your imagination run wild.

JD #bouncesandbuckets

Bounces and buckets — The REAL midweek hump and interplay of statutes and duties of care

Today’s bounce — $0.02 on a random topic — is the REAL midweek hump: TUESDAY.

And the bucket is the interplay of statutes and duties of care.

Tuesdays – the worst. Mondays are ok. But then Tuesday comes. 4 full days of work ahead (and for those who like me sometimes do a bit in the evenings, 3 nights). It’s a struggle.

But get through Tuesday, and by Wednesday morning I’ve already got the momentum going. Thursday and Friday often are managable. And then I’ve made it: Friday night.

It’s Tuesday that’s the problem. The REAL hump. Is this just me?

Now the bucket: if you have a statute that affects the relationship between two parties, and you are thinking about duties of care owed by one to the other, do you take the statute into account?

Yes, you do.

In Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [21]-[22], when considering (in that case) an employer’s duty to avoid psychiatric injury, the court noted that any applicable statutory obligations were (amongst other things) to be taken into account, and the content of the duty should not be examined without considering the other obligations between the parties.

Alright see ya later. JD #bouncesandbuckets

SPECIAL EDITION: Boomers and buckets — jinxes and family contracts

Today’s bounce — my $0.02 on jinxes. When things are going well, never say anything!

The bucket — $0.02 on family contracts — are there any presumptions?

Ah, the Boomers! What a performance in the World Cup. They’ll be better when Big Ben joins in! Bring on the Olympics.

And that’s why I didn’t say anything. Because of jinxes.

Every time it is said that a player has hit x shots in a row, next one is a miss (except for Elena Delle Donne, as faithful readers know). Every time you ask if a quiet matter has settled, it immediately blows up.

Just. Say. Nothing. Until it’s over.

Proven here, as I started thinking about this post last Friday morning. Then losses on Friday night and Sunday. Sorry, my bad.

Now, family contracts. Are there presumptions that there is no intention to create legal relations? No, there are not.

In Ermogenous v Greek Orthodox Community (2002) 209 CLR 95, the Court (at [26]) doubted the utility of using the language of presumptions, saying that all that did was invite attention to who bore the onus of proof.

Rather, as with much contract law, it requires an objective assessment of the state of affairs between the parties (at [25]).

JD #bouncesandbuckets