The Cherry-Evans Backflip: The case for a tortious interference claim

It has been widely reported in the news today the Daly Cherry-Evans, a rugby league player from the Manly Sea Eagles, has reneged on his agreement to play rugby league with the Gold Coast Titans in 2016 and will remain at his present club.

If you did not know, the NRL has a rule in which a player can, effectively, opt out, of a arrangement reached for the following year at any time up to the 13th round of the present year’s competition.  This is the loop hole Cherry-Evans and Manly has used to break the arrangement with the Gold Coast.

Obviously, the Gold Coast Titans, have invested a significant amount in seeking to get Mr Cherry-Evans to play for for their team.  In my view, they should receive recompense for their loss and one way to for them to do so resides in a tortious claim for interference in business relations.

Tortious interference with business relationships occurs where the tortfeasor acts to prevent the plaintiff from successfully establishing or maintaining business relationships. This tort may occur when a first party’s conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred.

In order to prove tortious interference with business relationship, most jurisdictions require that the following elements be satisfied:
  • A valid business relationship or business expectancy existed between the parties
  • The defendant had knowledge of the relationship or expectancy
  • The defendant intentionally coerced one of the parties to terminate the business relationship, breach a contract, or withhold a valid business expectancy
  • The defendant was not authorized to interfere with the parties’ dealings
  • The defendant’s interference resulted in damages to the plaintiff

If we apply those elements to the Cherry-Evans scenario:

  • Cherry-Evans and the Gold Coast Titans had, as a minimum, an expectancy of a business relationship arising out of his agreement to join them in 2016.
  • Manly Sea Eagles knew about that expectancy of a business relationship.
  • Since the announcement of the Cherry-Evans to Titans deal, if even just what has been in the press is to be believed, the Sea Eagles have taken steps to coerce Cherry-Evans to renege on his arrangement with the Titans and he has now done so.
  • Whilst I assume the Sea Eagles are entitled to talk to Cherry-Evans as their employee, I do not see how they could be directly authorized to interfere in the dealings between Cherry-Evans and the Titan.
  • The Titans have suffered a loss because Cherry-Evans will no longer be playing for them and, as a minimum, the funds they have invested in their attempt to get him to play for them have been lost.  Further, if the Titans have been restrained from signing other players because of their commitment to Cherry-Evans another head of damage could arise.

Obviously, the NRL rules around signing contracts and cooling off periods are farcical and promote conduct like that which we have seen, again, in the case of Cherry-Evans.  That though does not make the conduct of the Sea Eagles blameless either ethically or in the eyes of the law.

If I was the Titans board I would be pressing all legal avenues available to me to recover my losses from this fiasco from both the player and the club.  Blind Freddie could tell you that won’t happen given that the NRL runs the Titans but one day one can only hope that a club in a similar position does take this step to protect their rights and the interests of their members and fans.

Cowan, non-parole periods and the media

Like most Queenslanders, nay Australians, I have followed with, principally, horror the trial of Daniel Morcombe’s killer. Cowan (I will not do the man any honour by stating his whole name) was found guilty and sentenced to life imprisonment (on the murder charge) with a non-parole period set of 20 years.

Justice Atkinson, in her sentencing remarks, has been overt about her views and recommendations as to whether Cowan ought ever be considered for parole: in short she would never recommend that he be so considered.  That is, plainly, the right view to take.

The non-parole period set by Justice Atkinson, as she is required to do by Queensland law, has provoked much debate coupled with the threat of an Attorney-Generals appeal.  The debate would appear to have been provoked by the manner in which the sentence of Cowan has been reported.  The media focus, both in print and spoken media, has been on the “shortness” off Cowan’s parole period.  In just about every report I have heard / read the statement “Cowan was sentenced to life imprisonment with parole set at 20 years”.  That is just plainly wrong.  Actually, worse, it is deceptive.

Justice Atkinson’s setting of a non-parole does merely this: it sets the period that Cowan must serve before he can make an application for parole to the parole board.  IT DOES NOT MEAN THAT HE WILL BE OUT OF JAIL IN 20 YEARS.  It means he may seek to be.  Parole boards in Queensland, and more broadly in Australia, are tasked with determining whether a prisoner is suitable for parole.  So all of this hyperbole about Cowan getting out in 20 years is nothing short of hot air.  He is NOT entitled to get out of jail in 20 years; he is merely entitled to apply to be considered for parole.

Parole boards in Queensland, and again in Australia, have a long history of not letting the committers of heinous crimes out of jail when their non-parole periods have expired.  The case of Tony Rawlins is instructive here.  On April 18, 2010 Rawlin passed away at Wolston Park Correction Centre aged 82 having served 54 years in jail for murder of a 12 year old girl.  A medical expert at the time of his trial commented that “he was entirely unconcerned with his deeds.”  His numerous applications for parole were rejected by the Queensland parole board.

Another instructive example is that Douglas Crabbe who in 1983 in the Northern Territory drove his truck into a pub and killed 5 people.  He was sentenced to life in prison with a non parole period of 30 years.  His first parole application last year was rejected and he will not be able to apply for parole for another 3 years.

The Morcombe case is horrifying and I personally believe that Cowan should be locked away and the key thrown away.  He should never see the outside of a jail again.  The fact is that he will not leave jail again.  The sentence of life imprisonment with a non parole period of 20 years means that he will not leave jail again because it is incomprehensible that a parole board would release him.

The media needs to report the facts surrounding the imposition of a non-parole period rather than seeking to incite or misinform the public which is what it is blatantly doing.

I am going to repeat this again: I am not at all suggesting that the sentence of Cowan is two low or that he ought be out of jail in 20 years.  He should never see the light of day outside of jail again.  That is precisely what this sentence means: if only the press would report it that way.

Postscript: Is it any surprise that one of the two applications for a mistrial put to Justice Atkinson arose because of irresponsible reporting by the Courier Mail? The incitement of the public seems to have blinded, as it often does with the Courier Mail, what is actually fair and proper to report and the administration of justice.  I probably should not be surprised then they refuse to report the facts about what a non-parole period means.


Violence and Alcohol: Are increased sentences the answer?

I have been reading about the new legislation proposed by Barry O’Farrell, the New South Wales Premier, in an effort to combat the presently alleged “epidemic” of alcohol fuelled violence sweeping through Sydney and its suburbs.  Let me start with this: my thoughts and prayers go out to those who have lost loved ones as a result of current “epidemic”.  Equally, those same thoughts and prayers go out to anyone who has lost a loved one to a violent act. There can be no excuse for unprovoked or excessive violence.

The focus on alcohol fuelled violence of late and the legislative enhancements that have been proposed to sentences for crimes arising whilst under the influence has bothered me because the focus, in my view, on the alcohol element seems to miss the point that any violence, unprovoked, excessive or otherwise, is, or ought be considered to be, abhorrent.  I am bothered by the perception that seems to arise that there are different levels of criminality there arises from an assault depending on whether one is under the influence of alcohol or not.

This is a chicken and egg scenario isn’t it? On the one hand it is suggested, or appears to be suggested, that by reducing the opportunities of some to drink will thereby reduce violence.  On the other hand the perception that arises from the legislation and the press would appear to be that only drunk people commit acts of unprovoked or excessive violence.

The latter statement must fundamentally be incorrect: simply put once does not need to be exclusively drunk (or otherwise under the influence) to act in a violent way.  I guess what I am saying is that violence is not the exclusive province of those who are drunk.

The former statement, again, is flawed.  For a start, some of the recent incidents of alcohol fuelled violence have occurred between 9pm and midnight being a time at which the proposed new lock out laws would have had the possibility of reducing the level of imbibement of alcohol of the individuals acting in a violent way.  Further, am I alone in thinking that locking people out of premises is counter intuitive to protecting the public from violent acts? A lock out after a certain period only adds to the number of people, intoxicated, walking around trying to find transportation home.  Surely then a lock out increases the risks of an incident happening.

Maybe I am being too simplistic here but to me increasing the sentences available for alcohol induced violence whilst increasing the opportunities for said violence to occur completely misses the point.  Stopping the violence surely must be the best means of stopping alcohol fuelled violence not the other way around.  Afterall, how many drunks are going to stop themselves from acting in a violent way whilst drunk because they fear incarceration? Dealing with the violence and not the alcohol element of the violence must be the better way.

For me it comes back to something that I tweeted a while ago: regardless of the sentences available the prosecution of offenders and the sentencing of same to custodial sentences for all types of assaults is a great place to start deterring likely future offenders.  The perception that offenders are going to get away with acting in a violent way seems to have been begat by the phalanx of good behaviour bonds and suspended sentences we have seen in the past.

In addition, we, as a society, must get back to condemning violence of any kind for being exactly what it is: an abhorrent act of cowardice rather than celebrating same.   This is everyone’s responsibility and traverses education of kids and young adults, the punishment of those who commit violent acts and, frankly, the shaming of repeat offenders rather than their celebration.

I repeat what I said in the preamble: my thoughts and prayers go out to anyone who has lost a loved one to a violent act.  This post is not in any way designed to denigrate their collective memories.  I just do not think that what appears to be the current suggested “answer” (blaming alcohol) honours those memories and a broader approach needs to be taken to tackling the problem of violence of all types.

Australian XI: Best to have played 5 tests or less

I was asked yesterday to consider or create an Australian Cricket XI from those players who didn’t quite make it for Australia.  I have looked at the records of the 171 players to have played 5 test matches or less for Australia and have come with an XI based on the players whose records at the first class level would have suggested that they would have done more.

Here is my XI:

Charles Bannerman

Bannerman opened the batting in Australia’s first test match and scored 165 in the second innings of that first test.  He went on to only play in 3 tests for his country despite a quality first class record, for the time as follows:

Games Runs Average 100s Wickets Average 5fors Catches
44 1687 21.62 1 0 N/a 0 20

Wayne Phillips

Phillips came into the team in the place of the then vice captain of the team, Geoff Marsh. That factor alone meant that he was never likely to success, given that his captain, A Border, refused to join the Australian team at the venue of the test match until he had pleaded the dropped Marsh’s case. Phillips’ test match in Perth proved to be his only one.  His first class record stacks up against other openers of the time:

Games Runs Average 100s Wickets Average 5fors Catches
60 3859 38.59 9 1 124 0 24

Martin Love

Love was a classical right hand number 3 batsman for Queensland who came into the test line up off the back of number of bumper seasons from the Bulls and after injuries to Steve Waugh and Damien Martyn.  He stayed in the team for 5 test matches and despite a maiden hundred in his last test series was dropped after Martyn’s injury heeled.  An excellent player of all bowling types he retired with the following first class record:

Games Runs Average 100s Wickets Average 5fors Catches
214 16952 49.85 45 1 11 0 268

Stuart Law

Show me a follower of cricket in this current who says that there has been an unluckier player in this country than Stuart Law and I will show you someone who knows nothing about cricket.  Handed a debut in Perth when Steve Waugh was injured, Law scored 56 not out and was at the other end when R Ponting was out on 96 and Australia declared.  He would not play another test. I concede that law did have a significant one day career however I doubt there is another player with such a quality first class record who has only played one test match for his country in the world.  That record is:

Games Runs Average 100s Wickets Average 5fors Catches
367 27080 50.52 79 83 51.03 1 407

Cameron White

Named the captain of his state at a very young age by one of the most astute judges of talent in the game, the late David Hookes, White had long been tapped for greatness in the Australian set up.  A four test stint in the team in the harshest of conditions (India) has been the reward for a consistent first class career that has seen him lead his state to multiple Sheffield Shield titles. Still playing the game his first class career currently stands at:

Games Runs Average 100s Wickets Average 5fors Catches
137 8357 40.76 18 193 39.72 3 141

Andrew McDonald

McDonald came into the Australian test team at a time when Shane Watson was injured and Australia was playing the best team in the world, at the time, South Africa.  Batting at 6 / 7 and bowling as required McDonald let no one down however found himself out of the team after only 4 tests when Watson returned.  Another player still playing the game (albeit without a first class game since representing Australia A against South Africa in 2012) his first class record presently stands at:

Games Runs Average 100s Wickets Average 5fors Catches
91 4573 39.76 11 201 28.64 5 65

Richie Robinson

Although he was a wicketkeeper-batsman, Robinson’s three Test appearances came on the 1977 tour of England as a specialist batsman. Unfortunately Robinson spent his whole career in the shadow of one man: Rod Marsh.  Before his debut, he had finished top of the Sheffield Shield batting averages, and on the 1977 Ashes tour he scored more runs and took more catches than the number 1 but still could not get a look in.  He finished his first class career as captain of Victoria and with a record that any wicketkeeper batsman of current times would be proud of:

Games Runs Average 100s Wickets Average 5fors Catches
97 4776 39.8 7 0 N/a 0 289

Peter McIntyre

What happens when you are a leg spinner and your career comes at the same time of Shane Warne AND Stuart MacGill? You end up playing only 2 tests including one in India like the international career of Peter McIntyre. Unwieldy in the field, out of depth with the willow but with a wrong un that spat from the pitch McIntyre would have been the prototype for a leg spinner who batted at 11 and would have (and probably should have) played more but for Warne.  His first class average if not great bat playing at the Adelaide Oval 5 games out of every 10 will do that to your numbers:

Games Runs Average 100s Wickets Average 5fors Catches
97 798 8.06 0 322 39.66 12 33

Chris Matthews

Some of my earliest memories of watching cricket are from watching bowl at the Gabba in the opening tests of the summer in 1986 and 1988.  Those tests plus one more constitute the sum total of Matthews test career.  Why? Because Matthews was crippled by nerves and just could not land the ball.  Those performances are all the more astonishing when one considers that in first class cricket, particularly at his home ground of the WACA, Matthews was often close to unplayable.  Left arm fast swing bowlers do not come around often and Matthews was up there with the best: when he could land them.

Games Runs Average 100s Wickets Average 5fors Catches
100 2146 20.24 0 380 28.1 22 31

Jo Angel

Standing at 6ft 6in and broad through the chest, Jo Angel, it is simple to say, scared the life of first class batsmen when they came to Perth to play Western Australia.  The West Indies, who he faced in his first test match at that ground in 1992 were less worried and belted him.  Angel was next in the baggy green in Pakistan where he toiled manfully for limited return.  After playing the then toughest opponent in World cricket and going on the toughest tour in world cricket, Angel was never to play for Australia again. He played for Western Australian until 2004 and possesses a fantastic record at first class level:

Games Runs Average 100s Wickets Average 5fors Catches
121 1398 12.16 0 485 25.1 16 30

Mick Malone

I mentioned in the twitter exchanges that lead to this post that I was sure there would be a player in the team whose career was affected by World Series Cricket and that player is Mick Malone.  Malone played in only one test match before joining WSC and in that test match he performed well including snaring a 5 for.  In WSC though he was a peripheral player behind the likes of the Lillee and Walker and when WSC was over he never really got a look in despite continuing to perform well in first class cricket:

Games Runs Average 100s Wickets Average 5fors Catches
73 914 16.03 0 260 24.77 13 30

So there you have it: my “Best of less than 5 tests” Australian XI.  It is: Bannerman, Phillips, Love, Law, White, McDonald, Robinson, McIntyre, Matthews, Angel and Malone.  No doubt many will disagree with me but this is an XI that I think represents the best of those players who have not quiet reached their potential in the baggy green for reasons that range from the mental through the physical and ending with just not being selectors’ favourites.

Liquidators, Disclaimers and Leases: the High Court Rules

The High Court of Australia handed down its decision in Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51. This has been decision awaited with bated breath by insolvency practitioners around the land and deals with a previously confusion aspect of interpretation when it comes to the Corporations Act.

This appeal posed two statutory questions:
1. Does Div 7A (ss568 – 568F) of Pt 5.6 of the Corporations Act 2001 (Cth) (the “Act”) give the liquidator of a company power to disclaim the leases which the company granted?
2. If the Act gives that power, does disclaimer terminate the tenants’ rights arising under the lease?


Willmott Forests Limited (“WFL”) ran a forestry investment scheme under which it leased to participants in those schemes portions of land which it either owned or leased. Each lease was for a term of years, often with an option for a further term and provided that rent was to be paid either up front or on an annual basis.

In September 2010, WFL went into voluntary administration whilst receivers and managers were appointed to property within the WFL group which it had charged. Certain freehold land was not charged. In March 2011, the creditors of WFL voted to wind up it up.

The liquidators and receivers and managers sought to the sell the assets of WFL, including its freehold land and its interests as lessee of certain land. The sale was said to have been run on the basis that parties could either purchase the relevant assets unencumbered by the investment schemes or so encumbered with the ability to take over as manager of the schemes. No party sought to purchase the assets on an encumbered basis but 54 binding offers were made to acquire the assets on an encumbered basis.

Procedural History:

Having received the offers noted above, the liquidators applied to the Supreme Court of Victoria for a direction pursuant to section 511 of the Act for directions and orders about the sale process. The judge at first instance ordered separate determination of this question:

“Are the liquidators able to disclaim the Growers’ leases with the effect of extinguishing the Growers’ leasehold estate or interest in the subject land?”

Justice Davies (at first instance) answered this question in the negative. The liquidators appealed and the Court of Appeal of Victoria reversed Justice Davies. The Growers’ appealed on special leave to the High Court.


In a 4-1 decision (French CJ, Hayne, Kiefel and Gagelar JJ in the majority, Keane J in the minority) the Growers’ appeal was dismissed and the questions posed above where both answered in the affirmative.

Joint Reasons of French CJ and Hayne and Kiefel JJ:

The key points to arise from the binding joint judgment are as follows:

1. Their honours concluded that the term “Property” in section 568 (1) does not just deal with the ownership of land but that is it a “compendious” description of legal relationships amounting to ownership of objects of property (both tangible and intangible).
2. That being the case, the reference in section 568(1)(f) to “a contract” must be understood as identifying, as the disclaimer property, the rights and duties which arise under the contract.
3. The rights and duties which a landlord and tenant have under a lease are bundles of rights and duties which together can be identified as a species of property.
4. Further, the rights and duties of the landlord are a form of property; those rights and duties “consist of”, in the sense of derive from, the contract of lease.
5. That being the case, the leases to investors of which WFL was landlord were property of the company which may be disclaimed by the liquidator.
6. The effect of any disclaimer of the leases was that, because the company’s rights, interests and liabilities in respect of the leases cannot be brought to an end without bring to an end the correlative liabilities, interests and rights of the tenants, in order to release the company liability (as prescribed by section 568D(1)) it was necessary to terminate the tenants’ rights under the leases which operates to terminate the tenants’ estates or interests in the land.
7. The tenants are then left with the right to prove in the winding up as creditors for whatever damage is inflicted as a result of the disclaimer.

This case gives an important guidance to liquidator lessees and their tenants clearing up a previously uncertain area. The joint judgment notes that it has left a number of questions unanswered including:

1. Is the leave of the Court required for a disclaimer of a lease to be effective and, if so, what considerations would inform the Court’s decision as to whether to disclaim; and
2. How will the Court consider a scenario in which it is pleaded by the tenant that it has suffered gross prejudice as a result of the disclaimer (in the context of an application to set aside a disclaimer)?

The sooner these questions, for insolvency practitioners, are answered the better.

Once was a lawyer, always a law nerd … or am I?

For nearly two decades of my life I have been caught in the web that is the law.  For over a decade (if you include my articles of clerkship) I was a practitioner of the law and whilst I no longer am a practitioner to this day I love the law, or at least I think I do. 

My love of the law sees me continue to this day to read the transcripts of hearings in the High Court of Australia and the Supreme Court of the United States; it see me read every judgement word for word that these Courts hand down; and it sees me read everything I can about the history of these establishments and the Justices who grace their benches.  My love of the law has seen me, unilateral of my former work responsibilities as a litigator, visit the Supreme Court of the United States and the High Court of Australia just for the purposes of visiting and taking in the aura of each place.  

I have spent a long period of time reflecting on my time as a lawyer and my continued love of the law pondering why I still love something that, it could be said, has caused me no small amount of mental anguish.

Initially I thought that my love for the law had its nexus in the fact that I love an argument.  I recall my parents coming home from a Grade 11 parent teaching night to pose to me “what have you been doing to Ms Goldsworthy?”  Apparently my English teacher had exclaimed that she was frustrated with me because “every time I say something Stephen argues the opposite; sometimes I think he could argue that the sky is green and win”.  Equally I am prepared to declare that my happiest times in the practice of the law were when I was preparing for and arguing about issues at Court.  For me there was no greater experience than standing up in open court to argue my client’s case.  The fact is though, my love of arguing can not be at the root of my love the law because I loved arguing about anything and everything long before I discovered the law.

My thoughts then moved to whether I was in love with the traditions of the law.  By this I mean the history of the law combined with the conventions they create.  Such as calling the presiding judge “your honour” or “your worship”, bowing anytime you enter or leave a court room, the annual opening of the Court Year ecumenical service and the procedures around becoming admitted to practice.  However, as I pondered the law and its traditions it became abundantly obvious to me that over my time in practice the traditionalist nature of the law has dissipated over time.  No longer to Counsel where wigs (in most jurisdictions), disclosure and hearings can now be done electronically and training times for lawyers are becoming progressively shorter. As a traditionalist in most senses I can not confess to be enamoured with changes to the traditions of the law and thus conclude that it cannot be those traditions that keep my love strong.

Today, however, I had an epiphany.  As I sat over my lunchtime lasagna in the office reading the latest offering from the High Court of Australia, it struck that the basis of my ongoing obsession with the law rests not in being a pugnacious litigator or a staunch traditionalist but from the joy that reading the spoken word used to explain, and more particularly, craft that the laws that affect everyone on a daily basis has given, and continues to give, me. 

It struck me that my opening introduction to the law was in reading the judgements made by long gone judges in some of the seminal cases that structured our laws as we know them today.  Stories of snails in the bottom of bottles of ginger beer (Donoghue v Stevenson), a spectator being struck in the head while watching a cricket game (Bolton v Stone) and writing on the back of a train ticket leading to a contract (Parker v South Eastern Railway) entranced me as I hid away in the law section of Griffith University Library waiting for my next class or for the time to tick over for me to head home for a shift at Bundamba Tenpin Bowl.

The judges in those cases, beset with some fairly unique facts, where making the law as they wrote their judgements and wrote their judgments in such a way that they have stood the test of time.  Throughout my time as a student, I always enjoyed reading the cases of the Courts of England and Australia.  Often I was awestruck with how smart the judges must have been to be able to come up with the judgment they had and to be able to write in the way they did.   

As I became a practitioner of the law, I still found the judgments of the Courts entrancing now that I was reading them to try to find results for my clients and to have points to argue when I did appear as an advocate.  Equally I was still in awe of the writing of the judges: both in the cases I was reading and cases I was involved in in which judgments were written. 

These days I don’t read the judgments of the courts for meaning or to try to find an advantage for a client.  I simply have no reason to and yet I am still drawn to read them.  Reading a case from the Supreme Court of the United States about the status of the employees of a pharmaceutical company in the US (Christopher v SmithKline Beecham) or about a constitutional challenge to chaplaincy programs in Australian schools (Williams v Commonwealth of Australia) has nothing to do with what I am engaged with in my current career. 

So why do I read these judgments: it all comes back to the writing.  I do not agree with their views often but the judgements of Justice Antonin Scalia (Supreme Court of the United States) and Justice Dyson Heydon (High Court of Australia) are just so well crafted that they are a pleasure to read.  Often in dissent, both of these two judges have a writing style that means that you find yourself convinced that they just must be correct despite, often, no one agreeing with them.  Both judges also pull no punches when it comes to writing about the work of their colleagues which also makes their judgments enjoyable to read.

To quote Justice Scalia in Wabaunsee County v Umbehr:

The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize”

That is a fair statement of ones disdain for his colleagues if ever I saw one.

Reading Justice Heydon’s dissent today in Williams v Commonwealth of Australia it struck me that it is actually not really the law anymore that keeps me coming back to reading judgements.  It is in fact the use of the written word by the judges that does.  I know this tags me as a nerd (like you did not know that I was already) but I love reading good writing and judgments from the highest Courts in the land are some of the best writing around.

Does this mean I am not a law nerd anymore though? I am not reading the judgments for any other reason than I enjoy the writing.  On reflection though, the judgments of yesteryear and today still have as their nexus the laws that the judges are being asked to interpret, and sometimes create, on a daily basis.  So with that in mind I will continue to be self-proclaimed law nerd and state openly that I still love the law.