The High Court of Australia in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 has held that the so-called ‘Chorley exception’, a rule of practice which entitles a self-represented litigant who is a solicitor to recover professional costs, was not only anomalous and should not be extended by judicial decision to the benefit of barristers who represent themselves but that it was an affront to the fundamental value of equality of all persons before the law, could not be justified by policy considerations and should not be recognised as part of the common law of Australia. Accordingly, the High Court overruled the decision of the New South Wales Court of Appeal in Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150 (summarised by K Ottesen on 6 August 2018) which had applied the exception to a self-represented barrister.

Chorley exception

The Chorley exception was introduced by London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 (“Chorley”) and is an exception to the general rule that a self-represented litigant is not entitled to professional costs for acting for himself or herself in legal proceedings. The Chorley exception came to be applied in Australia, most notably, by the High Court in Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 (“Guss”).

Nevertheless, doubts were raised about the application of the exception. In Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 (“Cachia”), a majority of the High Court described the exception as “somewhat anomalous”, as having a “somewhat dubious” and “unconvincing” justification for its existence, and as being “limited and questionable”.

As to whether the exception applied or extended to barristers, there had been some judges who had been prepared to apply the exception, or, at least, to assume that it applied, to self-represented barristers, while other judges had refused to so apply it.

Background to the proceedings

The background to Bell Lawyers Pty Ltd v Pentelow was that a barrister had sued an incorporated solicitors’ practice for unpaid fees. The barrister was legally represented in the proceedings against the solicitors but had undertaken certain preparatory legal work on her own behalf including drawing affidavit evidence, compiling written submissions, advising senior counsel and representing herself at directions hearings. The barrister was ultimately successful in the proceedings and received a costs order in her favour. The barrister then claimed costs for the legal work which she had personally undertaken in the proceedings but these were disallowed by a costs assessor and, on appeal, by a Review Panel. An appeal by the barrister to the District Court of New South Wales was dismissed and the barrister had then sought judicial review of the District Court decision in the Court of Appeal.  A majority of the Court of Appeal then held that the barrister was entitled to rely on the Chorley exception because the barrister’s work could be measured or quantified by the same processes as the work of solicitors. By grant of special leave, the solicitors appealed to the High Court.

High Court decision

Plurality

Kiefel CJ, Bell, Keane and Gordon JJ in a joint judgment first considered and then rejected the reasons which were said to support the Chorley exception. The key points made by the plurality were to the following effect (at [17]-[25]):

• It was not self-evidently true that it was a benefit to the other party that a solicitor represented himself or herself in litigation because the expense to be borne by the losing party could be expected to be less than that which otherwise would be borne if an independent solicitor were engaged. A self-represented solicitor could lack objectivity due to self-interest which could, in turn, lead to higher legal costs being passed on to the other party should the self-represented solicitor obtain an order for his or her costs.
• Moreover, the view that solicitors should be encouraged to represent themselves was contrary to the modern orthodoxy that, as a matter of professional ethics, it was undesirable for a solicitor to represent himself or herself in litigation. In such a case, there could not be independent and impartial advice. This view was reflected in those rules of the Australian Solicitors’ Conduct Rules (adopted by most jurisdictions including New South Wales) and equivalent rules in other jurisdictions requiring solicitors in matters before a court to exercise forensic judgments independently of the client and to not appear as an advocate for the client in a hearing where the solicitor was a material witness in the client’s case.
• The rationale for the exception – that the value of legal services rendered by a solicitor to himself or herself could be measured or quantified whereas the value of work or time by a layman could not be measured or quantified – was not persuasive and did not justify an exception to the general rule that a self-represented litigant was not entitled to obtain any recompense for his or her time spent on litigation. The general rule was not based on a concern about the difficulty of valuing the amount of recompense but, as explained in Cachia, was confined by the concern that an order for costs provide the successful party with partial indemnity against the expense of professional legal costs actually incurred in the conduct of litigation. In addition, as had also been noted in Cachia, this rationale for the exception ignored the questionable nature of a situation in which a successful solicitor litigant might not only receive the amount of the verdict but might also actually profit from the conduct of the litigation.
• Further, there was no reason why the reasonable value of the work or time of any litigant could not be measured or quantified. To act upon a principle that evidence enabling the measurement or quantification of the value of the work or time of non-solicitor litigants in person should not be accepted by the courts would exalt the position of solicitors in the administration of justice to an extent that was an affront to equality before the law.
• There was an air of unreality in the view that the Chorley exception did not confer a privilege on solicitors in relation to the conduct of litigation. It patently was a privilege and was inconsistent with the equality of all persons before the law.

The plurality then considered whether the Court should depart from the authority of Guss by abandoning the Chorley exception and concluded that (at [30]-[38]):

• Guss had proceeded upon an uncritical acceptance of the authority of Chorley, which itself had departed from principle in several respects, and so did not establish a principle carefully worked out in a succession of cases; and
• the recognition of the Chorley exception in Guss had achieved no “useful result” as indicated by the criticisms in Cachia, criticisms which, importantly, had included that the Chorley exception involved inequality before the law.

Accordingly, the plurality said that, in the absence of a compelling reason to the contrary, the Court should hold that the Chorley exception was not part of the common law of Australia (at [39]).

The plurality then considered various arguments advanced by the barrister but found that there was no compelling reason for the Court to refrain from holding that the Chorley exception was not part of the common law of Australia (at [40]-[56]):

• The barrister had argued that the definition of “costs” in s 3(1) of the Civil Procedure Act 2005 (NSW) encompassed costs within the Chorley exception. However, the plurality said that the definition of “costs” in s 3(1) left no room for the Chorley exception as a matter of legislative intention.
• It had also been argued by the barrister that serous inconvenience would arise in relation to the use of in-house solicitors by governments and others, if the Chorley exception was not part of the common law. The plurality rejected this argument saying that a decision to abandon the Chorley exception would not disturb the well-established understanding in relation to in-house solicitors, that where such a solicitor represented his or her employer in proceedings the employer was entitled to recover costs in circumstances where an ordinary party would be entitled to do so by way of indemnity. However, the plurality went on to indicate that a solicitor employed by an incorporated legal practice of which the solicitor was the sole director and shareholder might be in a different position and that whether or not such an incorporated legal practice should be able to obtain an order for costs for work performed by its sole director and shareholder was ultimately a matter for the legislature.
• A further argument by the barrister had been that the task of abandoning the Chorley exception was a task more appropriately dealt with by the legislature or rules committee of a superior court. The plurality, however, said that the Chorley exception was the result of judicial decision and, accordingly, it was for the High Court to decide whether it should be recognised in Australia.
• Finally, it had been argued by the barrister that if the Court were to alter or abrogate the Chorley exception, such a change should only operate prospectively so that the Court of Appeal’s decision would not be disturbed. The plurality, however, said that if an earlier case was wrong and required overruling, then to maintain in force that which was acknowledged not to be the law would be a perversion of judicial power.

Accordingly, the plurality concluded as follows (at [3] (footnotes have been omitted); see also [57]):

“The Chorley exception has rightly been described by this Court as ‘anomalous’. Because it is anomalous, it should not be extended by judicial decision to the benefit of barristers. …  Dealing with the matter more broadly, however, the Chorley exception is not only anomalous, it is an affront to the fundamental value of equality of all persons before the law. It cannot be justified by the considerations of policy said to support it.  Accordingly, it should not be recognised as part of the common law of Australia.”

Other judges

Gageler J (at [63]) and Edelman J (at [99]) agreed with the plurality that the Chorley exception should not be recognised as part of the common law of Australia. Nettle J (at [70] and [79]) agreed with the plurality that the Chorley exception did not extend to barristers but, unlike the plurality and Gageler and Edelman JJ, considered that there was no need or justification to decide that the Chorley exception should be abolished.

The High Court of Australia in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 has held that spent convictions which the Australian Securities and Investments Commission (“ASIC“) was prohibited from taking into account in deciding to make a banning order against a person as not being fit and proper to engage in credit activities could not be taken into consideration by the Administrative Appeals Tribunal (“AAT“) in reviewing ASIC’s decision.

Background

ASIC had made a banning order against F under s 80(1)(f) of the National Consumer Credit Protection Act 2009 (Cth) (“Credit Protection Act“) which enables ASIC to make a banning order against a person if it has reason to believe that the person is not a fit and proper person to engage in credit activities.  Section 80(2) of the Credit Protection Act relevantly provides that, for the purposes of para (1)(f), “ASIC must (subject to Part VIIC of the Crimes Act 1914) have regard to” a range of specified matters. A note at the end of s 80(2) provides that Pt VIIC of the Crimes Act 1914 (Cth) includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. Those provisions are found in Div 3 of Pt VIIC of the Crimes Act and are s 85ZV which deals with non-disclosure and s 85ZW which relevantly provides that a Commonwealth authority which knows or could reasonably be expected to know that the person is not required to disclose a spent conviction is prohibited from taking account of the fact that the person was charged with or convicted of the offence.

F’s history included “spent convictions” within the meaning of Pt VIIC of the Crimes Act and these had not been taken into account by ASIC in making the banning order.  By s 327 of the Credit Protection Act, F was entitled to make an application to the AAT for review of ASIC’s decision. F made such an application to the AAT. The AAT affirmed ASIC’s decision and, in doing so, took into consideration the spent convictions.

F appealed on a question of law to the Federal Court of Australia which dismissed the appeal. A further appeal to the Full Court of the Federal Court was also dismissed. F appealed by special leave to the High Court.

Appeal issue

The issue in the appeal was whether s 85ZZH(c) of the Crimes Act entitled the AAT to take into consideration material which ASIC was prevented from taking into account by Div 3 of Pt VIIC of the Crimes Act.

Section 85ZZH(c), which is within Div 6 of Pt VIIC, provides that Div 3 of Pt VIIC does not apply in relation to the disclosure of information to or by, or the taking into account of information by a court or tribunal established under a Commonwealth law, a State law or a Territory law, for the purpose of making a decision, including a decision in relation to sentencing. In Div 3 of Pt VIIC, ss 85ZV and 85ZW, dealing with non-disclosure of spent convictions and the requirement that they not be taken into account, are expressed to be subject to Div 6.

ASIC argued that. by reason of s 85ZZH(c), Pt VIIC operated differentially when the decision-making body was the AAT as compared to when it was ASIC, and that the words in brackets in the introduction to s 80(2) of the Credit Protection Act which required ASIC, for the purposes of para (1)(f), to have regard to specified matters “(subject to Part VIIC of the Crimes Act 1914)” acknowledged that this was the effect of s 85ZZH(c), with the result that ASIC was prevented by Pt VIIC from taking into account spent convictions while the AAT in reviewing ASIC’s decision could take into account such convictions.

Decision

The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) unanimously rejected ASIC’s argument and found that the AAT could not take the spent convictions into account.

Bell, Gageler, Gordon and Edelman JJ

A joint judgment of Bell, Gageler, Gordon and Edelman JJ made the following points (at [48]-[53]):

• Section 80 of the Credit Protection Act was solely directed to ASIC’s power to make a banning order. The words in brackets in the introduction to s 80(2), together with the note to s 80(2), acknowledged that the decision-making power of ASIC was constrained by Pt VIIC of the Crimes Act. The words in brackets said nothing about the decision-making power of the AAT.
• Section 85ZZH(c) of the Crimes Act did not go beyond the non-application of Div 3 of Pt VIIC to a tribunal established by statute taking information into account for the purpose of making a decision. It did not alter the statutory jurisdiction of the tribunal and did not make a spent conviction relevant to be taken into account in the exercise of that jurisdiction. Thus, the jurisdiction of the AAT on a review of a decision made by ASIC under s 80 of the Credit Protection Act was not affected by s 85ZZH(c) of the Crimes Act.
• The reason for this was because, except where altered by some other statute which had not occurred, the jurisdiction which was conferred on the AAT by ss 25 and 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) on an application made to it under an enactment for review of a decision, was to stand in the shoes of the decision-maker and decide for itself the decision which could and should be made in the exercise of the powers conferred on the primary decision-maker. Thus, the AAT exercised the same powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answered, marked the boundaries of the AAT’s review. The AAT had to address the same question which the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determined the considerations that were or were not to be taken into account by the AAT in reviewing the decision.
• To accept ASIC’s argument would result in the distortion of the exercise of the powers conferred on the AAT by s 43(1) of the AAT Act because, if spent convictions were to be taken into account by the AAT:
  • the AAT would not be able to sensibly remit the matter to ASIC for reconsideration in accordance with any directions or recommendations of the AAT as ASIC would then be required to ignore the spent convictions; and
  • any decision by the AAT in substitution of, or varying ASIC’s decision would be deemed by s 43(6) to be a decision of ASIC, even if that substituted or varied decision took into consideration spent convictions which ASIC was prevented from taking into account.
• The AAT and the primary decision-maker existed within “an administrative continuum.” The AAT did not have jurisdiction to make a determination on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration.

Accordingly, Bell, Gageler, Gordon and Edelman JJ concluded that ASIC’s decision-making power under s 80 of the Credit Protection Act was constrained by Pt VIIC of the Crimes Act to prevent ASIC from taking spent convictions into account and that the AAT’s decision-making power was subject to the same constraint in the exercise of the jurisdiction conferred on it by s 327 of the Credit Protection Act and ss 25 and 43 of the AAT Act (at [54]).

Kiefel CJ, Keane and Nettle JJ

A joint judgment of Kiefel CJ, Keane and Nettle JJ made the following points (at [16]-[32]):

• Subject to any clearly expressed contrary legislative intent, the question which the AAT was required to decide in reviewing ASIC’s decision was whether, having regard to the same specified range of matters in s 80(2) of the Credit Protection Act which, by reason of s 85ZW of the Crimes Act excluded spent convictions, and thus excluding spent convictions, F was not a fit and proper person to engage in credit activities.
• Section 80(2) of the Credit Protection Act did not express a clear contrary legislative intent. The requirement in s 80(2) that the matters to which ASIC was to have regard was “(subject to Part VIIC of the Crimes Act 1914)” was, in terms, directed only to ASIC and said nothing about a review of ASIC’s decisions by the AAT. The AAT’s review of ASIC’s decisions was separately provided for in s 327 of the Credit Protection Act, and s 327 also said nothing about the matters to which the AAT was to have regard in the conduct of the review.
• ASIC’s argument needed to be assessed against the background of long-standing principles regarding the function of an administrative review tribunal engaged in merits review of administrative decisions. Against that background, it was improbable that Parliament would select a technique of obscure implication to fundamentally change the nature of administrative merits review of a decision made by ASIC under s 80 of the Credit Protection Act or to change the nature of merits review of any other administrative decision to which Pt VIIC of the Crimes Act applied. This was all the more so where, as in the case of s 80(2), there was nothing to suggest in any of the extrinsic materials a parliamentary intention that the AAT was to exercise a function other than the function exercised by ASIC. Therefore, it was more probable that Parliament did not intend to change the nature of administrative merits review of ASIC’s decisions in the way proposed by ASIC.
• Provisions of other Commonwealth legislation which had been relied upon by ASIC in support of its argument were, like s 80(2) of the Credit Protection Act, silent as to the AAT in the conduct of merits review of administrative decisions and implied nothing about the application of s 85ZZH(c) of the Crimes Act to the AAT in the exercise of that function.
• The Full Federal Court had considered that the reasoning of White J, in dissent, in Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368; (2014) 88 NSWLR 159 (“Kocic”) in relation to a similar provision in New South Wales legislation supported the conclusion that s 85ZZH(c) entitled the AAT to take into consideration material which ASIC was prohibited from taking into account by Pt VIIC. However, the reasoning of the majority judges in Kocic was to be preferred, and that reasoning fortified the conclusion that s 80(2) of the Credit Protection Act did not make s 85ZZH(c) of the Crimes Act applicable to the AAT in the review of a decision of ASIC under s 80(1) of the Credit Protection Act. “[I]t is not to be supposed that Parliament intended to make such a profound change to the nature of merits review by a legislative side-wind. The better view is that s 80(2) does not have that effect.”

The Supreme Court of New South Wales in Cappello v Roads and Maritime Services [2019] NSWSC 439 has held that proposed acquisition notices given by Roads & Maritime Services (“RMS”) in respect of an underground stratum of land which RMS intended to compulsorily acquire for the purpose of constructing a road tunnel were authorised by law and within the power of RMS.

Background

The notices were given under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“Just Terms Act”) which prevents an authority of the State from acquiring land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so. By s 7 of the Just Terms Act, the authority is not empowered by that Act to acquire land if it does not have the power (apart from that Act) to acquire the land.

The notices made it clear that RMS was purporting to acquire the land by exercising power under s 177 of the Roads Act 1993 (NSW). Section 177 empowers the Minister, RMS or a council to acquire land for “any of the purposes of this Act”. By s 178, land that is authorised to be acquired may be acquired by agreement or by compulsory process in accordance with the Just Terms Act. The notices indicated that the acquisition of the land was for the purposes of the Roads Act in connection with the construction, operation and maintenance of the WestConnex M4-M5 Link tunnels.

Planning approval for the carrying out of the WestConnex M4-M5 Link had been granted under the Environment and Planning Assessment Act 1979 (NSW). Pursuant to s 52 of the Roads Act which enables the Minister, by order published in the Gazette, to declare to be a tollway any road proposed to be constructed on land owned or to be owned by RMS, the Minister, by order published in the New South Wales Gazette, had declared the proposed road to be constructed in the main tunnel to be a tollway. It was common ground that the tollway when constructed would be a private road under the Roads Act. Pursuant to s 63 of the Roads Act, which empowers the Minister to direct that some or all of the functions of a roads authority with respect to a classified road are to become the responsibility of RMS, ministerial directions had been made directing that all of the functions of a roads authority were to become the responsibility of RMS with respect to the project.

Landowners’ submissions

The landowners claimed that the notices were of no legal effect because RMS did not have the power to acquire their land. Their submissions were, broadly, as follows (at [20]-[24]):

• The power of acquisition for “any of the purposes” of the Roads Act in s 177 was a power of acquisition for the express objects of the Roads Act as set out in s 3 of the Roads Act only and those objects extended to public roads only, and to existing public roads only. This construction of s 177 was supported by the protection which the law generally afforded rights of private property.
• Section 71 of the Roads Act which authorises a “roads authority” to “carry out road work on any public road for which it is the roads authority and on any other land under its control” was not an alternative source of power to acquire the land because the proposed road was not a public road; road work did not extend to work on a tollway; and the power to carry out roadwork on any other land under the road authority’s control referred to land already under the authority’s control and not to land which it was yet to acquire.

Decision

Campbell J of the Supreme Court observed that the power of RMS to acquire land under s 177 of the Roads Act, although limited by the phrase “for any of the purposes of this Act”, extended to acquiring land “for the purpose of opening, widening or constructing a road or road work” as well as to acquiring “land that forms part of, or adjoins or lies in the vicinity of” the land necessary to be acquired for the performance of the road work (at [39]).

His Honour, having regard to the primary object of statutory construction which is to construe the provision in question so that it is consistent with the language and purpose of all the provisions of the statute, said that the construction of s 177 propounded by the landowners significantly read down the ordinary meaning of s 177 and treated the objects provision in s 3 as a constraint on the meaning, operation and application of, not only s 177, but of each provision of the Roads Act (at [40]).

His Honour further said that the objects provision in the Roads Act expressed the objects of the Roads Act in very general terms or at a high level of abstraction and was not to be regarded as an exhaustive statement of the purposes of the Roads Act even though the language of the objects provision was definitive rather than inclusive. His Honour also said that the objects should not be read as controlling the meaning to be given to the other, operative provisions of the Roads Act (at [41]-[42]).

His Honour then went on to say, after having regard to various authorities, that the expression “for … the purposes of this Act” in s 177 did not mean ‘only for any one or more of the objects expressed in s 3 of this Act’ and that, while “objects” and “purposes” could be synonyms, construed in context, “the purposes of this Act” as used in s 177 was referring to the general statutory purposes to be gleaned from all of the provisions of the Roads Act including:

• the objects provision;
• the nature of the functions conferred upon the Minister, RMS or a council by the Roads Act; and
• the powers conferred by the operative provisions (at [49]; see also [43]).

Adopting this approach, his Honour was satisfied that RMS had power to acquire private land either by agreement or by compulsory process in accordance with the Just Terms Act for the construction of a proposed road declared by the Minister under s 52 of the Roads Act to be a tollway, on land to be owned by RMS. His Honour said that the references to any proposed road and land to be owned by RMS in s 52 of the Roads Act showed that the Minister’s power to declare a tollway related equally to existing roads (whether public or private) or new roads proposed to be constructed and that there was no question on the agreed facts in the case that the land sought to be acquired would be owned by RMS (at [50]-[51]).

His Honour also said that the express terms themselves of s 52 of the Roads Act indicated that a purpose of the Roads Act was that RMS acquire necessary land for the construction of new roads which the Minister might declare to be a tollway and that s 54 of the Roads Act enhanced this conclusion because, under that section, the Minister could not make an order classifying a road except on the recommendation of RMS (at [52]).

Finally, his Honour indicated that ss 63 and 64 of the Roads Act were important markers of the purposes of the Roads Act and fortified the conclusion that s 177 empowered RMS to acquire private land for the purpose of the construction of tollways.  His Honour’s reasoning was as follows (at [53]-[56]):

• Section 64(1A) empowered RMS to exercise the “functions” of a roads authority with respect to the proposed tollway “for the purposes of the carrying out of a project approved” as State significant infrastructure under the Environmental Planning and Assessment Act, of which the tunnel formed part. The conferral of the functions of a roads authority on RMS for the purpose of the project indicated that the discharge of that function by RMS was a purpose of the Roads Act referred to in s 177 on its proper construction, as well as being an object of that Act in the narrower sense insofar as s 3(f) applied. [Section 3(f) states that an object of the Roads Act is to confer certain functions (in particular, the function of carrying out road work) on RMS and on other road authorities.]
• Section 64(1) expressly empowered RMS to exercise the functions of a roads authority with respect to any “classified road” (the definition of which included a tollway) whether or not it was the roads authority for that road and whether or not the road was a public road. Under s 71 of the Roads Act, a roads authority could “carry out road work on any public road for which it is the roads authority and on any other land under its control.” “Road work” was defined to include the roadway itself and the tunnel while “carry out road work” was defined to include carrying out any activity in connection with the construction of a road work. Thus, the function of a roads authority which RMS could exercise under s 64(1) in relation to any tollway included constructing the tollway “on any … land under its control” under s 71. Facilitating the exercise of this function was a purpose of the Roads Act and so RMS was empowered by s 177 to acquire the land.
• Pursuant to s 63, ministerial directions had directed that all of the functions of a roads authority were, to the fullest extent possible, to become the responsibility of RMS with respect to the project. This indicated that the carrying out of these functions by RMS, as directed, was a purpose of the Roads Act. And s 177 gave power to RMS to acquire private land in accordance with the Just Terms Act for that purpose.

Accordingly, his Honour concluded that the proposed acquisition notices were authorised by law and within the power of RMS.

The High Court of Australia in Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 has found that the direction commonly referred to as the ‘Prasad direction’ is contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person.

‘Prasad direction’

A ‘Prasad direction’ is a direction by a judge to a jury in a criminal trial that it is open at any time after the close of the prosecution case to acquit the accused if the jury considers the evidence is insufficient to support a conviction (at [1]).

Background

The case involved a murder trial in Victoria. After the close of the prosecution case, defence counsel applied to have the jury given a ‘Prasad direction’ on the basis that the prosecution could not negative that the act causing death was done in self-defence. The trial judge acceded to the application and gave a ‘Prasad direction’ over the prosecutor’s objection. The jury withdrew to consider their response to the direction and then returned to the court and advised that they wished to hear more and so the trial continued. After the close of the defence case, but before addresses, the trial judge reminded the jury of the continuing operation of the ‘Prasad direction’ and allowed the jury a further opportunity to consider whether they wished to hear more. The jury withdrew to consider their response to the renewed ‘Prasad direction’. Subsequently, the jury returned to the court and delivered verdicts of not guilty of murder and not guilty of manslaughter.

The Director of Public Prosecutions (Vic) referred a point of law to the Victorian Court of Appeal, namely, whether a ‘Prasad direction’ was contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person. The reference of the point of law did not affect the murder trial or the acquittal. The majority of the Court of Appeal answered the point of law to the effect that a ‘Prasad direction’, “in appropriate circumstances”, was not contrary to law. By special leave, the Director appealed to the High Court of Australia.

Court’s decision

After considering, amongst other things, the origins and development of the long-standing practice and the English and Australian authorities, the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), in a joint judgment of all seven justices, concluded that a trial judge was precluded from giving a ‘Prasad direction’ by the common law of Australia (at [13]).

Key points made by the Court included the following (at [50]-[57]). References to the cases have been omitted.

• The saving of time and costs and the restoring of the accused to his or her liberty at the earliest opportunity were the considerations which informed the conclusion of the majority in the Court of Appeal. However, given that a ‘Prasad direction’ was unsuited to a trial which involved legal or factual complexity or to a trial of more than one accused person, these considerations lost much of their force. The saving of time and costs was likely to be relatively modest in the case of an uncomplicated trial of a single accused person.
• In the case of an uncomplicated trial of a single accused person, the capacity to relieve the accused person of the strain of the continuation of the trial was to be weighed against the acknowledged dangers of the practice. Those dangers included that the jury would react adversely to the perceived pressure to acquit or that they would be influenced by the perception that the judge regarded the proper verdict to be not guilty. A direction after the close of the prosecution case that it was open to the jury to return a verdict of not guilty without hearing more might be considered inevitably to carry with it that the judge regarded acquittal to be the appropriate verdict.
• Even if a ‘Prasad direction’ could be framed to avoid such a perception, there remained the problem that such a direction trenched on the adversarial nature of the trial. The judge’s duty was to preside impartially, ensuring that the trial was fair to both parties. Thus, the prosecution was entitled to have a full opportunity to explain the way its case was presented, and to have a verdict from the jury that was based on the application of the law as explained by the judge to their findings of fact.
• The practice wrongly enlarged the powers of a trial judge at the expense of the traditional jury function. If there was evidence (even if tenuous or inherently weak or vague) that could sustain a verdict of guilty, the matter was to be left to the jury for its decision. The exercise of the discretion to give a ‘Prasad direction’ based upon the trial judge’s estimate of the cogency of the evidence to support conviction was, therefore, inconsistent with the division of functions between judge and jury and, when given over objection, with the essential features of an adversarial trial.
• Moreover, the practice amounted to an invitation to the jury to determine the matter from a basis of ignorance which could be profound. A jury was not fully equipped to decide whether evidence established guilt beyond reasonable doubt unless they had heard all of the evidence, counsel’s addresses and the judge’s summing-up. Anything less fell short of the trial to which both the accused and the Crown were entitled according to law.

Accordingly, the Court answered the point of law to the effect that a ‘Prasad direction’ was contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person.

The New South Wales Court of Appeal in Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15 has found that a mistaken belief as to the date on which an option to purchase land lapsed which resulted in the grantee not exercising the option within the specified time was not due to the grantor’s conduct. Accordingly, the grantor was not estopped from relying on the terms of the option agreement.

Background

M had granted the applicants an option to purchase a farm under an option agreement dated 4 September 2012. The applicants had purported to exercise the option on 28 September 2016. They claimed that, under the terms of the option agreement, the option did not lapse until 4 years from the date on which they took possession of the farm, being 4 October 2016, and that they had, therefore, validly exercised the option. M disputed this.

A judge of the Supreme Court of New South Wales found that the applicants’ belief about the date on which the option lapsed was incorrect and that the option lapsed four years after the date of execution of the option agreement, namely, on 4 September 2016. Accordingly, the trial judge found that the purported exercise of the option was ineffective. The trial judge rejected various estoppel claims made by the applicants.

The applicants sought leave to appeal to the Court of Appeal. They did not now dispute that, on a proper construction of the option agreement, the option had lapsed on 4 September 2016, four years after the date of execution of the option agreement, but maintained, as their primary case, that the trial judge should have found that M was estopped from denying that the period for exercise of the option continued until 4 October 2016.

Form of estoppel relied on

The applicants’ case was based on estoppel by representation and estoppel by convention. It was claimed that M represented to them, in conversations both before and after the option agreement was executed and in a document prepared after the option agreement was executed, that the option period would continue until 4 October 2016. The case based on estoppel by convention alleged that the parties proceeded on the basis of a mutual assumption to the same effect (at [72]-[73]).

Court of Appeal

The Court of Appeal (Beazley P, Sackville AJA and Barrett AJA) granted leave to appeal but dismissed the appeal on the basis that the applicants’ mistaken belief that the option would not lapse until four years from the date they took possession of the farm had nothing to do with anything said or done by M.

Sackville AJA (Beazley P and Barrett AJA agreeing) said that the elements necessary to create an estoppel by representation were (at [70]):

• A statement or other conduct that constituted a representation of fact.
• Its communication to the representee.
• The representee’s justifiable belief in its truth and his or her alteration of position in that belief.
• An attempt by the representor to contradict the representation made by him or her.
• Prejudice to the representee as a result of his or her alteration of position if contradiction of the representation were permitted.

His Honour said that the representee did not need to show that the representor’s conduct was the sole or dominant cause of the representee’s altered course of conduct (at [70]).

As for estoppel by convention, his Honour further said, relying on Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14 at [22]; (1986) 160 CLR 226 at 244, that this was a form of estoppel which was founded on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both would be estopped from denying. It had to be shown that the alleged assumption had in fact been adopted by the parties as the conventional basis of their relationship (at [71]).

His Honour then made points to the following effect (at [77]-[101]):

• In a conversation predating the option agreement, M had said nothing about the length of the option period or the date on which it would lapse. Therefore, the misapprehension as to the option period, both before and immediately after the execution of the option agreement, had nothing to do with anything said or done by M prior to the option agreement coming into effect.
• The belief as to the duration of the option period was alleged to be “confirmed” by a conversation which took place several months after the option agreement came into effect but, assuming, contrary to the trial judge’s finding, that the applicants’ account of the conversation was accurate, M had addressed neither the duration of the option period nor the date the option would lapse in that conversation. If the conversation confirmed the applicants’ pre-existing belief as to the date the option would lapse, then it was because there was already a misapprehension that the option period was a fixed period of four years from the date possession of the farm was taken. It was that misapprehension which led to certain words being interpreted as saying something about the date on which the option would lapse. The misapprehension was not induced by any conduct of M. In any event, the trial judge had not accepted the applicants’ account of the conversation that had post-dated the option agreement and there was no sound basis for overturning what were credit-based findings.
• M was not responsible for any confusion on the applicants’ part as to the terms of the option agreement. A self-induced misunderstanding could not provide a basis for estoppel by representation. Nor could it provide a basis for conventional estoppel unless the misunderstanding was shared and acted upon by the other party.
• A document being a payment schedule sent by M in late 2013 did not convey a representation that the option would not lapse until 4 October 2016.