HCA allows appeal in Chorley Exception case

In the matter of Bell Lawyers Pty Ltd v Pentelow & Anor [2018] HCATrans 264, the High Court has granted special leave to appeal an earlier decision of the New South Wales Supreme Court, after it held that the Chorley exception may extend to barristers.

The case follows a lengthy legal battle between Sydney barrister Janet Penetelow and Bell Lawyers, after the firm failed to pay Ms Pentelow $25,988.55 for work she performed on a family law case in 2008.

Ms Pentelow subsequently initiated proceedings and was successful in her claim. However Bell Lawyers refused to pay when Ms Pentelow claimed almost $45,000 for work she did as a self-represented litigant on that case.

In August 2018, a 2-1 majority of the New South Wales Supreme Court held that the Chorley rule that allowed solicitors to recover costs when acting as  self-represented litigants also applied to barristers. Bell Lawyers subsequently applied to the High Court for special leave to appeal that decision.

The matter was heard before Chief Justice Kiefel and Justice Gordon in December, where counsel acting for Ms Pentelow contended that special leave ought to be refused as the costs in question were no more than $44,000 and the costs of running an appeal would far exceed that amount for both parties. In doing so, they submitted that granting special leave would be inappropriate on the basis that 'it would be inimical to the interests of justice and ... the established requirement that litigation be just, cheap and quick.'

However Bell Lawyers argued that 'cost shifting is a crucial part of the administration of justice' and subsequently that Ms Pentelow's contention about the amount of costs being relatively modest 'ought not to be seen as a disqualification from special leave.'

Ultimately the court granted special leave, concluding that the matter should be remitted to the full court. In doing so, Gordon J submitted that regard should be had to three questions:

  1. Is the Chorley exception still good law?
  2. Does it extend to barristers?
  3. Does it extend to barristers who have retained a solicitor and counsel to appear for them?

The case is likely to be heard in the first half of this year, with both parties agreeing it should only take one day. It highlights a highly contentious area of Australian law and it will be interesting to note the outcome and its implications for future cases.

Sydney property developer jailed for phoenix activity

In a recent decision of the New South Wales District Court, a Sydney business man was sentenced to six years in jail and ordered to pay $1.8 million in reparations, after he was convicted of tax fraud relating to illegal phoenix activity.

On 25 January 2019, the court found that Benjamin Ensor had fraudulently lodged false Business Activity Statements on behalf of nine companies he was sole director of between 2008 and 2011.  Ensor subsequently used the money obtained from this practice to fund the development of five luxury apartments in Manly and to purchase a bevy of luxury items including a catamaran, a marina at Lake Macquarie and a new home.

It was also revealed that Ensor structured his companies to fraudulently obtain GST credits, reporting his business expenditure at more than $24 million in order to claim over $2.2 million in GST refunds. In doing so, Ensor created false invoices relating to project management services and high value excavators, trailers and trucks.

He also failed to report the sales of the Manly apartments on which he should have paid more than $1.5 million.

Ultimately, the ATO alleged that Mr Ensor’s actions saw him defraud the Commonwealth of $3.4 million.

The decision follows increased efforts to curb illegal phoenix operations, with ATO Assistant Commissioner Aislinn Walynn declaring that this case exhibits classic illegal phoenix behaviour, in which “companies were deliberately liquidated to avoid paying creditors and taxes”, whilst “new companies continued operating the same or a similar business with the same ownership.”

In doing so, she declared that the “result demonstrates the ATO’s commitment to detecting and prosecuting the most egregious tax crimes and should serve as a warning to those who think they can flout the law and get away with it.”

ARITA set to publish 4th Code of Professional Practice

Late last year ARITA released a consultation draft for the 4th edition of its Code of Professional Practice for Insolvency Practitioners, which serves to educate ARITA members as to their professional responsibilities and provide a reference for stakeholders to gauge the conduct of practitioners. Of the changes, perhaps the most significant is to the format of the Code, which features an overarching Code of Ethics and is then split into two separate codes; one for formal insolvency appointments and the second for all other advisory work.

Insolvency Services

This section of the Code has been drafted with reference to the proposed APES 330, and is to apply only to those working on formal insolvency appointments. The standard has been greatly simplified from previous editions, with much of the previous content shifted out to non-binding Practice Statements.

Advisory Services

This item is to focus on matters such as pre-insolvency work and safe harbour advising.

ARITA is currently reviewing feedback on the code, following a period of public consultation which closed on Monday.

AAT remits claim for advance under FEG Act after finding applicant was an employee

In the recent decision of Roberts and Secretary of Jobs and Small Business [2019] AATA 64, the Administrative Appeals Tribunal (AAT) reviewed a decision made by the Secretary of the Department of Jobs and Small Business that the Applicant was not eligible to claim an advance under the Fair Entitlements Guarantee Act 2012 (Cth) ('FEG Act').

The FEG Act establishes a scheme which enables employees who have lost their job as a result of the insolvency of their employer to make a claim for unpaid entitlements (an advance) through the Commonwealth. If the claim is accepted the Commonwealth then assumes the place of the employee as a creditor in the winding up and is then entitled to claim repayment of the entitlements paid in priority to other creditors pursuant to section 556 of the Corporations Act 2001 (Cth).

However, not every worker is eligible to claim under FEG Act as the term “employee” has been deemed to exclude contractors and subcontractors. This was the basis of the review as the department Secretary deemed that the Applicant (Mr Roberts) was a contractor and not an employee within the meaning of the term in the FEG Act. Mr Roberts had sought review of this decision asserting his status should have been classed as an employee within the meaning of the FEG Act.

In determining whether Mr Roberts was an employee or contractor, the Tribunal discussed a series of factors beginning at paragraph 51. Following deliberation of the evidence, Mr Roberts was deemed to be an employee within the meaning of the FEG Act and the claim was returned to the Secretary to be assessed in accordance with the Tribunals findings.

Whilst the law is clear that when determining what kind of employment relationship exists “the totality of the relevant relationship needs to be examined …”,the factors discussed do provide a useful general “checklist” that could be used to determine if a worker is an employee or not. The factors discussed are summarised in the following table:

As can be seen, generally what will indicate a contractor relationship is a significant degree of separation between the worker and employer. It is not sufficient to simply label the worker a contractor in an agreement.

ASIC vows to crack down on corporate misbehaviour by prioritising litigation

Following criticism in the wake of the Hayne Royal Commission, ASIC has vowed to crack down on increasing business misconduct by implementing a new 'litigate-first' strategy. In doing so, the corporate regulator has committed to placing a greater emphasis on litigation, warning that it will 'move more quickly to, and accordingly conduct more, civil and criminal court actions against larger financial institutions.'

The move follows the alarming findings of the Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, at which the regulator was denounced for being too soft on misbehaviour and for 'rarely' going to court.

Consequently, ASIC has admitted that it must change its approach, seeking to place greater emphasis on litigation and warning that it will first ask, 'why not litigate?' when assessing how to address misconduct.

However, ASICs strategy is already under scrutiny, after litigation efforts against Westpac saw the Federal Court impose a paltry $3.3 million fine for unconscionable conduct - a mere fraction of ASIC's $58 million request.

This outcome has revealed that reform is necessary if further misconduct is be prevented, with Justice Beach declaring that although he wished to impose a much greater fine to deter others, this 'seriously inadequate' penalty was the most he could impose under law.

Despite this, ASIC commissioner Sean Hughes has warned that 'it is inevitable that there will be more litigation and more people out there in the market who will have to be prepared for a much firmer, much stronger regulator, who is far less likely to compromise.  Whether such an approach is appropriate will have to be determined but the writer is sceptical that a firmer approach is warranted.  In the writer’s view, targeted litigation with genuine outcome ought to be the focus and as part of that process compromise must be balanced against the outcome sought.

FCA: Income protection payments not exempt in bankruptcy 

In the matter of Gittens v Field (Trustee) [2018] FCA 976, the Federal Court of Australia has held that income protection payments from personal injury are assessable income under the Bankruptcy Act.

Having owned and operated a dental practice for almost 25 years, John Gittens had retained two income protection policies which sought to protect his livelihood in the event that he suffered total disablement that rendered him unfit to work.

In 2015, Gittens was preparing a barbeque when he cleavered the top of his left index finger, resulting in amputation and thus hindering his ability to continue work as a dentist. Gittens subsequently lodged a claim pursuant to the policies, and it was accepted that he was entitled to receive income protection payments of $270 000 per year.

On the 25 January 2017, after leaving his dentistry business, Gittens entered bankruptcy. On the same day, Malcolm Field, in his capacity as the trustee of the bankrupt estate, issued Gittens with a contribution assessment notice pursuant to s 139W of the Bankruptcy Act. The notice outlined the contribution Gittens was liable to pay, calculated with regard to the income protection payments he had received, or was likely to receive. Relevantly, Field held that these payments were 'income', and as such were to be considered when applying the regime established by the Act.

However Gittens disputed the assessment and subsequently initiated proceedings. In doing so, he contended that the trustee had no entitlement to the benefits as they were property that was not divisible between his creditors by virtue of s 116(2)(g).

Accordingly, the court was required to consider whether the monthly payments arising under the income protection policy were in fact 'income', or whether they were exempt as arising from personal injury.

Ultimately, the court held that income does not vest in the bankruptcy trustee, but rather is payable by way of a statutory formula pursuant to Div 4B, PtVI of the Act.

Moreover, Charlesworth J held that s 116 is not the sole means for identifying divisible property, and that as such, it is not necessary to resort to s 116(2)(g), which specifically excludes monies derived by personal injury.

Relevantly, his Honour noted that, "had Mr Gittens not lost his earning capacity, his income as a dentist would be subject to the income provisions...and...viewed in that way, it is difficult to see how the creditors of the bankrupt in that situation could be unjustly swelled or advantaged by the application of the income contribution scheme to the Benefits."

This case bears an interesting distinction from the decision in Berryman, in which a lump sum TPD payment was held to be protected in bankruptcy, on the basis that it was a one-off payment that had not been quantified by reference to income or earning capacity.

Video recording deemed sufficient to constitute will

In the recent decision of Radford v White [2018] QSC 306, the Queensland Supreme Court held that a video recording was sufficient to constitute a deceased man's will.

On 24 January 2018, Jay Schwer passed away from an accidental overdose after self-administering pain killers following surgery for a motorcycle accident. At the time of his death, Mr Schwer had not executed a formal will, however had expressed his intentions in a video recording filmed by his de facto partner Katrina Radford.

The recording was made on 21 November 2016, after Ms Radford requested that he make a will before purchasing a motorcycle. In the video, Mr Schwer declared that "everything", including "all money and super funds", was to go to Ms Radford and that his "soon to be ex-wife Nicole White" was to receive nothing. Mr Schwer also allocated a portion of his possessions to his daughter Aleena.

Following Mr Schwer's death, Ms Radford made an application to the court seeking orders that the recording be recognised as a document that formed his will within the meaning of s18(2) of the Succession Act 1981 (Qld). In doing so, Ms Radford submitted that the video expressed Mr Schwer's testamentary intentions and that the court should be satisfied that Mr Schwer intended that it form his will.

Accordingly, Justice Jackson was required to consider whether the video recording constituted a document under section 18(2). Moreover, his Honour was required to determine:

  1. Whether the video recording stated Mr Schwer's testamentary intentions;
  2. Whether Mr Schwer intended that the recording operate as his will; and
  3. Whether Mr Schwer did in fact have testamentary capacity.

Is the video recording a document?

In reaching his conclusion, Justice Jackson referred to previous cases in which a digital video disc and an audio recording satisfied the meaning of document as required by section 18. As such, his Honour concluded that the video recording was a document.

Did the video recording purport to state the testamentary intentions of Mr Schwer?

Justice Jackson concluded that "there was no question" that the video recording purported to state Mr Schwer's testamentary intentions because:

  1. Mr Schwer stated the reason for the recording, being that his partner had requested he do a will before collecting his motorcycle later that day;
  2. Mr Schwer indicated that he would repeat his intentions by filling out "the damn forms" later;
  3. Mr Schwer used the words "but as sound mind and body", likely indicating his appreciation of the legal formality relating to wills; and
  4. Mr Schwer clearly stated how and when he wished his money and possessions to be allocated.

Did Mr Schwer intend that the video recording should without more operate as his will?

Given the context in which the recording was made, the court was satisfied that Mr Schwer clearly intended that it was to operate in the event of his death. Specifically, the court held that Mr Schwer's intention to complete the forms at a later date did not displace his intention that the recording was to operate as his will in the meantime. The court noted that the delay in actually attending to fill out the forms could be explained by the head injury sustained in the motorcycle crash and the resulting memory loss of the day the recording was made.

Did Mr Schwer have the necessary capacity? 

As an informal will, Ms Radford bore the onus of establishing Mr Schwer's capacity. In doing so, she presented substantial evidence which indicated that since childhood, Mr Schwer had functioned at a high intellectual level.

In seeking to establish the contrary, Ms White adduced evidence of Mr Schwer's behaviour and state of mind in the months preceding his death. However, the court held that Ms White's evidence was not relevant to Mr Schwer's capacity at the date the recording was made, and even if it were, it did not displace the evidence that otherwise proved his capacity.


Ultimately, Justice Jackson was satisfied that Ms Radford had successfully established each of the conditions required for the video recording to constitute a will within the meaning of section 18(2). The recording was declared the will of Mr Jay Schwer.

If you are ever in the unfortunate situation of taking instructions for the will of a person who may be likely to die imminently, this case presents a useful source of the alternatives available to a written will. Despite this, section 18 relief for informal wills is not a substitute for thorough estate planning.

The importance of claiming privilege in s19 examinations

Have you been served with a Compulsory Examination Notice under section 19 of the Australian Securities and Investments Commissions Act? Here's a short guide through the process and the reasons why claiming privilege against self-incrimination is important.

Compulsory Examination
A compulsory examination, or a section 19 examination, grants ASIC the power to ask questions about a matter which they are investigating. If you have been served with a compulsory examination it is imperative that you attend, as failure to participate or answer the questions asked is an offence punishable by both heavy fines and imprisonment.

If you have been served with notice to attend an examination, the law requires that you are afforded ample time to prepare. In doing so, it is recommended that you elect to have a lawyer present to help you navigate the process and to ensure your rights are protected.

The examination will be conducted in a private location, and will be highly confidential in nature. As such, your lawyer is the only person who you are entitled to have present in the room.

Before commencing, the ASIC officer should inform you of your rights and obligations, including that you must not discuss the meeting with anyone, for a specified period of time. The exception to this is that you may discuss the interview with your lawyer if they are in attendance. If your lawyer does not accompany you, you should first seek permission from ASIC to discuss the meeting with your lawyer afterward.

Throughout the interview you will be obliged to answer all questions directed at you, even if doing so exposes you to self-incrimination.

There is no inherent privilege against self-incrimination. In order to prevent self-incriminating evidence being admitted at trial, two conditions must be satisfied:

  • you must claim privilege in respect of your answer before answering a question; and
  • at trial, the court must find that the answer would in fact incriminate the examinee.

Having a lawyer present can assist in alleviating the stress associated with the examination process. Not only can a lawyer instruct you as to when you should claim privilege, but they can also assist in holding the examiners to account, by ensuring that their questions remain lawful and do not unnecessarily incriminate you.

Following the examination you will be sent a transcript of the meeting and asked to review it. Once you have checked it for errors, you must sign it.

As the transcript may ultimately be used as evidence against you in a civil or criminal trial, it is crucial that you review it carefully. In doing so, you should ensure that the answers you claimed privilege over have been excluded. If you believe an error has been recorded on the transcript, you should ask your legal team to notify ASIC in writing.

We are here to help
We understand that being served with a section 19 notice can be a stressful and overwhelming time. We have assisted numerous clients through the process . If you want to ensure that ASIC do not exceed their lawful authority in the questions they ask, and to ensure that you properly claim privilege, please do not hesitate to call us.