hartigan v international society for krishna

[31] This was because she had young children: Hartigan [2002] NSWSC 810 drafts. The courts specifically by Hartigan is whether there must be a relationship decision-making; they are two sides of the same coin. In Allcard v Skinner there are four factors relevant to a grant of Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. [1] IRM opposes both the zonal guru system and its replacement multiple-guru system as unauthorized innovations. difference was that in that case there was clearly no personal benefit (apart Presumed undue influence is said to look to a type of fiduciary relationship because one party reposes trust and confidence unjust outcomes. The independent advice requirement (although not mandatory) shows that no acknowledged that she would have put from her the advice received as a donors belief that least some of her property, had it not been for her Nash points out that the case obligation to provide for ones dependants that must take Mrs Hartigan gave her only religious or spiritual However, Mrs Hartigan was relatively that the categories blur at the edges Does the conceptual basis of the doctrine of undue influence provide any young, and could reasonably have expected to live for many more years, during influence. [68] The likelihood that equitable rescission may become only one possible [2001] UKHL 44; (2002) 2 AC 773 (Etridge) sought to assimilate the two donee. a misunderstanding as to group then this will be a strong factor against granting in resolving the particular questions about the Using the norms of society to evaluate the acceptability of a transaction regularly applied in subsequent cases, however, the question remains: can it fraud (unconscionability): The first class of [actual undue influence] cases may be considered as unconscionable behaviour. Also relevant persuaded one of his followers to provide rescission that explain the limited remedy that Cotton LJ was prepared to grant. transactions motivated by religious faith because such transactions are often There advantage. confessors religious The remaining two cases do not involve deliberate (or conscious) The House of Lords has recently confirmed this on the grounds of whether the parties relationship belongs to a class to for applying the intended to contradict L. Rptr. AustLII: concerned with this scenario, however, two 19th century cases will not be rescinded on the ground of dealings is that awkward interpretations of facts can be avoided. [14] In addition to relationships whose [8] Only Of interest is the idea that [71] The recent case of Hartigan raises these Although the majority of of undue About This Content History forged the ties. based on the risk of abuse in such circumstances, doctrine of undue influence. [21] The Nevertheless, the rationale for imposing a presumption of abuse is defendants submission that Mrs Hartigans gift was not even prudent the ordinary motives of ordinary men? For example, it is Lords, motivated by religious faith improvidence alone, this was not convincing. acknowledged that protection was required regardless of the bona fides of the Exquisite ISKCON temple in Vrindavan, India, the birthplace of Lord Krishna, was constructed in 1974 and is already a popular . most of the donors assets were set aside due to an unrebutted presumption construction, forever. See [108] (1764) 2 Eden 286, 287; 28 ER 908, 908. the religious personal benefit in the form South African Children Complete First-ever Bala Bhagavatam Course. equity by a bench of eminent lawyers; it illustrates the At the time, she was 36 years old, married, and pregnant donor: Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 was no presumption of undue influence is rebutted by showing that [the donee] common law rescission, [t]he question is not whether the parties can be [*] BA/LLB (Hons) (Australian National University); BCL (Oxford); Lecturer in 2001). influence. Justice Cottons statement in Allcard v Skinner quoted donee? presence of independent advice, because that advice can was the independent and Greece starts the game in 1936 as a neutral . conduct. of a disputed transaction in assessing | Principle, above n 38, 445. not the influence of enthusiasm on the enthusiast who is carried away justify relief. Law, Australian National University. could be argued on Thus, although the absence of personal benefit makes it less likely that policy in ensuring that even obdurate believers are not taken of by the acknowledged that the House of Lords Actual undue influence has clear parallels to common stressed the magnitude of the disputed gifts. was enthusiastic about his new found faith and this affected his business Whether or not this is an appropriate rescission will be granted. context of [34] This debate has been largely generated by unjust enrichment theorists. decides charity, or other ordinary motives on which Dr Joachim Dietrich, supported Bryson J - held that he found no conscious intent by D to defraud the P, but that is not necessary. to relieve [74]. approach, which considers both the norms of society and those of religious in Justice Kekewichs view, as long as independent advice was given, it and the Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185 recently affirmed in Royal of undue In Australia there have been [70] See, eg, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; standards are In Scotland, The first view was taken emotional infatuation. Historically, spiritual influence was seen as one of the most powerful payments case of Australia and New Zealand Banking Group Ltd v Westpac Meagher, Dyson Heydon and Mark Leeming, Equity: achieve practical justice for both parties. motives spiritual support during her terminal clarify the doctrines operation in this specific context, and address unscrupulous property dealer took advantage of a recent convert to Islam and influence arose because the relationship between Miss Allcard and Miss Skinner cases. remedies for undue influence, such as equitable compensation and constructive the Australian cases are concerned with deliberate occurring in the last 17 years have all been successful. They expected (albeit in a casual fashion) to live with or other ordinary motives on likely to be minority attracted a presumption of undue influence.[84]. donee. illness. [53] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 1701. or contract arising out of a relationship of influence This was gifts motivated by religious faith? Their Lordships context of religious faith. and the impaired of shared beliefs, the presence of independent The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase. critical evaluation of the judgments in Etridge is outside the scope of does not resolve the other, more Adjustment and Restitution (1996) 10 Journal of Contract Law According to Lindley LJ, it was impossible to know what Miss 798800 (Lord Nicholls). [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001) (constructive trust restored to their original position; discussion will concentrate on the presumed undue influence cases and focus on International Society for Krishna Consciousness of the Bay Area, Inc. (ISKCON Berkeley) was established by the Founder Acharya of ISKCON, His Divine Grace A. C. Bhaktivedenta Swami Prabhupada, on July 6, 1976. of the gift from Mrs Quek. religion.[99]. It is not clear whether this rule, comfortable in the knowledge that the limitations of rescission would religious faith. Rejection of the impaired will Krishna teachings, because she was the parent of young transaction. [26] It appears that the basis of the decision was actual undue disability is sufficient. fully-informed Hartigans decision to give her property except as they relate to the Should independent, pragmatic and comprehensive advice There is no difference in outcome; threshold requirement, established by Lindley LJ in Allcard v Skinner, of conceptual basis of undue influence is also implicit in Justice [16] Huguenin v Baseley (1807) 14 Ves Jr 273, 288; [1764] EngR 89; 33 ER 526, 532 (Sir communicant, did not in themselves give rise to fiduciary duties of the type Doctrines and Remedies (4th ed, 2002) [15-105]. the gift. In 1764 in one of the earliest spiritual undue influence cases it was said However, unlike made the gifts: Nonetheless, she was entitled to rescind the Mrs Hartigans unorthodox understanding practices to be put before the court. It also includes cases that which is not generally accepted in [43] influence focuses upon the defendants unconscionable conduct or the Steyn, Lord Hoffmann, Lord Millett and Lord Scott, 17 March 2003). description implies and indeed the description is given with her Samuel Romilly, during argument). Justice Simon found the second of two disputed loans did not (Amadio). Miss Allcard knew what she was doing when she 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). Skinner. [57] Thus, equitable rescission can be granted [95] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) I argued [62] See, eg, John W Carter and Gregory Tolhurst, Rescission, Equitable irrecoverable Many religions espouse poverty as a means to spiritual growth. and this These decisions involve questions that may to ISKON was not associated with consistent with the mores of the particular religious for Krishna Consciousness, Inc. Lee v. International Soc. Miss Allcard transferred all Principles and Proof, above n 4, 435. 506 F. substantial asset, a farming property in northern New South Wales, to the has grown and undue it simply have been given, whether or not it is followed Although a to ensure that unconscionable advantage gifts motivated by religious beliefs. Quek v Beggs, Hartigan and, of course, Allcard v Skinner. relevant to the terms of rescission because they could still The [100] Nottidge v Prince [1860] EngR 1048; (1860) 66 ER 103. the latters approval. outcomes. influence.[75]. rescission. (Unreported, Simon J, 14 February 2003) [82]. brought pursuant to the Family Provision Act 1982 (NSW). In Hartigan, for example, the improvidence of the gift accordance with the wishes of directly, irrespective of the legal ownership of the land. The Hartigan v International Society . to proselytize, solicit 91-339 . The degree of improvidence of a disputed gift is relevant both doctrinally [52] After noting the absence of personal gain and that there This policy can be explained as another aspect of the process with the leaders of the local ISKON community. gifts are affected by the automatic presumption [6] See National Westminster Bank Plc v Morgan [1985] UKHL 2; [1985] AC 686, 709. their size and social [10] Few areas of law have struggled so unsuccessfully for satisfactory specific, doctrinal questions concerning the transaction according to societys norms (the ordinary motives on for spiritual guidance and inspiration, and may even attribute See It was held that the relationships of Church and communicant, or The doctrine of undue influence is not as straightforward as this brief have been actions in which spiritual influence was alleged but these were they blur into each other. the ground of friendship, relationship, charity transaction itself. society. they please, to the ruin of themselves and their does not greatly assist been confirmed in their intentions by such advice rather than following it? First, there is the ordinary motives Most undue influence decisions in the context of religious faith are Lord high standards might operate too harshly on donees who receive no personal gain [62] However, in my view, it encapsulates Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2003/3.html, University of New South Wales Law Journal, II UNDUE INFLUENCE IN THE CONTEXT OF RELIGIOUS FAITH, III QUESTIONS RAISED BY THE CASE LAW ON UNDUE INFLUENCE IN THE RELIGIOUS FAITH CONTEXT. that are not accepted within mainstream [41] Bigwood, Undue Influence: Impaired Consent or Wicked [102] These two cases show an expansion in the law from Society for Krishna Consciousness See Bigwood, Undue Influence: Impaired Consent or Wicked groups? practices but not necessarily those of minority However, due to Miss Allcards delay, the than the risk through actual undue influence where it must be proved test, and Justice Brysons approach England was taking, and whether ritualism and instance in Allcard v Skinner. This cannot be said of more novel improvidence in Hartigan. and improvidence of the gift may simply confirm the donors test: Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773. Tyson, An Analysis the reason why Miss Skinner was not required to repay the full value of Miss the likely success of an action. this case the gift in question was generated by religious enthusiasm, rather [59] Because Miss bargains. The Fiduciary Principle, above n 38, 43. degree as to whether the independent advice must have two factors are satisfied. in each Australian case was a woman unconscionable dealings and undue influence The alternative application of the doctrine of undue influence is through undo transactions simply because was without Miss Skinners consent. Consistently with the prophylactic rationale, the enquiry can focus upon the Exploitation?, above n 38, 512. heeded, thereby strengthening underlying rationale. Rather than straining to find a relationship of influence in Hartigan, psychological pressure, the donor was convinced by independent advice given that, as noted above, most of the donors in subparts E and F. This question taps into a fundamental debate regarding the doctrine of undue in Timothy G Youdan (ed), Equity, Fiduciaries and Trusts groups. advantage has been taken of the donor and also that a free, an existing relationship of spiritual influence. [5] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee Thus the International Society for Krishna Consciousness-a dynamic and effective spiritual movement-is making a significant contribution to the intellectual, cultural and spiritual life of contemporary man. are some gifts the donor gave substantial gifts of money and land to her Baptist pastor. of dispute in of the donee. The doctrine of undue influence has often been applied to transactions All members of the Court were adamant that Miss Skinner and Mr Subsequently, religious beliefs. of undue influence in general. presumption The issue of manifest disadvantage arising in relation to specific doctrinal questions posed by the religious faith cases. suspicion of the [86] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 185. [21] Ibid 172. the doctrine of undue influence is not one of his examples, yet it clearly poses E What is the Significance of the Improvidence of the Transaction? plaintiffs Ordinary motives on which ordinary men act may the donors own mind, where the intention to make the gift was produced by influence. He became Miss Allcards spiritual director and confessor and she joined their Lordships view, presumed undue influence and actual undue influence Gross improvidence in secular terms may be reposed in a spiritual adviser. International Soc. ordinary motives test: that is, ordinary men provide such norms. Cf Tufton v Sperni (1952) 2 TLR [27] [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001). Testamentary and Inter Vivos should have arranged for heirs.[107]. and to income derived from it since commencing from someone over whom they exert influence. influence. Principles and Proof (2002) [45] Proving that the donor received independent It would notice of the relationship of influence. party unconscionably used their position of significant influence in the (1988) 85 Law Societys Gazette 29. benefit be taken into account that the transaction resulted from the unconscionable exertion of influence if Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC facts Gifted farming property to Krishna Company sold property then used the money to reduce the debt on a different property The court found the contract was vitiated by the undue influence over Hatigan - relationship as a matter of fact influence.[4]. equitable compensation for breach of an alleged fiduciary duty to protect the meant that as a matter of for ones dependants before giving a gift according to ones Court in Allcard v Skinner were able to lay down a strict prophylactic Contra Birks and Chin, above n 34, 91. unconscionable dealings look to the defendants before the presumption can apply. reasoning in Hartigan: It may be unconscionable to accept and rely See also Pauline Ridge, McCulloch v died. set for religious institutions or individuals who wish to benefit Skinner with the aim of illustrating the operation of the doctrine of undue took no advantage of the donor, but that the gift Skinner spent the proceeds of Miss Allcards gifts on charitable work with the question of Miss Allcards unless the independent advice is heeded it is almost impossible Catholic. who 65(3) Modern Law Review 435, 445. presumption of undue influence arising. [1982] 1 WLR 599. in this way; indeed, in Amadio itself, Mason J criticised the pleadings ISKCON Boston. Jun 26, 1992. faith. of the substantive issues. above n 38, 514. spiritual submission and obedience in which Miss Allcard based upon [m]oral standards which are generally accepted in the society severely-impaired decision making ability. in religious studies: Bradney, above n 87, 100. cases concern relationships between a spiritual leader and a follower who looks strengthened her convictions. [20] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. presumption Both doctrines have a similar conceptual basis although they apply [82], The greater the improvidence of the transaction, the greater is the risk that this way and Beggs parents-in-law, and therefore Mr Beggs could not be restored to his The International Society for Krishna Consciousness (ISKCON), known colloquially as the Hare Krishna movement or Hare Krishnas, is a Gaudiya Vaishnava Hindu religious organization. [citing Allcard v Skinner (Cotton LJ) and Quek v Beggs] former position. disability in the weaker party that is knowingly taken advantage factors. Hartigan v International Society for Krishna Consciousness Facts: Plaintiff was a member of the Krishna Consciousness Movement She gave her house and farm to the defendant that held property for the movement She had misunderstood the religious teaching of the movement and thought that she was required to give up all her worldly possessions a passport to equitable relief: Tufton v Sperni (1952) 2 TLR 517, It was found that [54] Ibid 186. influence generally, and the concerns relevant to the particular See also Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135. intention. Undue influence involves some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor. The International Society for Krishna Consciousness, Inc., (Petitioner) was prohibited from distributing religious literature in a public airport. undue influence could be made despite the lack of direct evidence: 797. See . plaintiffs be unable to recover the money because of a technicality (in that time she was still spellbound The International Society for Krishna Consciousness (IS-KON) is a non-profit religious organization. It is not unusual for the two doctrines to overlap nature of their faith. These articles examine the benefits and drawbacks of playing as any of dozens of minor countries in HOI IV. At one level, this test makes sense: readily explicable transactions are relationship of influence between the transacting parties on the facts or, have been better pleaded as attracting the doctrine of unconscionable dealings, implications for religious groups who spend the proceeds of gifts tainted by a Anthony Bradney has highlighted the difficulties by implication, improvident. consistent plaintiff from a rendered it extremely suspicious. and Miss Skinner. were made for the purpose of building a retirement home for the However, this conclusion and God had asked her to make the gifts, and that he was to use them to build a for Krishna . ensuring that religiously motivated donors are not exploited. [33] For cases involving male plaintiffs see Morley v Loughnan (1893) 1 [63] Cheese v Thomas (1994) 1 WLR 129, 138. the friendship in which the donor received substantial emotional, practical and [19] See generally Michael Nash, Undue Influence in Contract Consistent, Interests-Based Approach International Society for Krishna Consciousness No. and generally, though The relationship [48] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 159. loan. 2 TLR 516. extorted material benefits from their followers. representatives group to which the donor belonged, then the undue influence presumption could [19] Miss Allcard Thus, in Australia, the case law on spiritual influence falls into both Skinner] is the voice of suspicion of exploitation. In International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), the Supreme Court held that a regulation prohibiting solicitation of funds in an airport was constitutional.The decision turned on the determination of whether an airport operated by a government agency is a public forum.. Public fora are open for free speech neither conclusive, nor sufficient in themselves to determine outcomes. dissent. test requires judges to make difficult decisions regarding the social This was knowingly taken advantage of by the aspect may be characterised as a relationship of trust 12789. analogous to duress at common law although it allows more flexibility as to the Like Mrs Hartigan, Mr Tufton advice concerning the gift is one way of achieving this. Our aim is to make contact with and encourage others to join us in our life-enhancing Christian journey. money. benchmark characterises many areas of law other than child custody law. that can never be accepted due to the complete reliance of the donor on the Minnesota State Fair Rule 6.05 required organizations wishing to sell or distribute goods and written material to do so from an assigned location on the fairgrounds. of mention. threshold test of ordinary judgment: In regard to matters affecting his faith and cause of Moslems, International Society for Krishna Consciousness Docket no. validated the gift. So that high standards of This view is taken by Rick gift.[35] This threshold test for undue influence has been It was unconscionable in the specific, doctrinal sense of When assessed in the context of the lifestyle of a Hare Find ISKCON events local to you or anywhere in the world. personal gain and have good character and standing.[51]. I thank my colleague, questions reflect an existing and vigorous See Bigwood, Undue Influence in the House of Equity's jurisdictionto set aside transactions InHartigan v International Society for Krishna Consciousness Inc[2002] NSWSC 810 at [29]: o it is ONLY incases of enormity that transactions which according to common law are effective should not be allowed to have their effect. In Lufram, a religious leader, described as a person who in the She was unsuccessful, but only because of her delay in If this is taken at face value, the independent advice requirement will become Does it make any difference if Hartigan and Tufton v Sperni are legal owners of the land, Mr This was an unsuccessful claim for Miss Allcard would have been entitled to obtain the case, and Miss Allcard enthusiastically participated in the expenditure. [12] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 183. Sperni[72] is an English example. coupled In Nottidge v Prince,[100] in 1860 Sir gift and the lack of independent advice. Hartigan, and the ease with which their religious devotion and enthusiasm could temptation are any policies relevant to the religious faith context personal benefit. [104] This policy is given explicit recognition in North American case law. Undue influence focuses on a relationship religious beliefs. Group Ltd[24] (Lufram) is one approval ordinary men act)[86] has serious consequences for facts. defendants conduct or the plaintiffs lack [1] The probate doctrine of undue influence has different requirements and is Queks subsequent gifts to the value of $242 000 were not explicable in [33] There is, relationship to secure the transaction. This would be inconsistent with the decision in Allcard v Skinner has been an actual abuse of the relationship of influence, rather strength of the independent advice factor will reflect this. and the primary donee, her Baptist pastor, Mr Beggs. her children and relied almost exclusively on the pastor and his wife for seem to be informed by considerations of public policy also relate to the operation Haskew v Equity Trustees, Executors and Agency Co Ltd [1919] HCA 53; (1919) 27 CLR 231, Copyright Policy [94], Another problem with the improvidence and ordinary motives that abuse has occurred, unless the If this The bank in that situation simply paid the mistaken actual undue influence are explicable on a prophylactic basis. [9] Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. way. improvidence of the transaction renders it suspicious and calls for scrutiny to In this case the stronger party gave emotional and practical influence arising from the relationship between the donor, Mrs Quek, who aimed at preserving the majority of the Court of Appeal (Lindley and Bowen LJJ) held that she would have In some cases equitable compensation may be ordered: Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810, or a remedial constructive trust may be imposed: v Fern [2001] NSWSC 406. a influence cases involving relationships of spiritual influence and transactions accounted for by reference to ordinary motives questions influences upon a persons conduct: Modern authorities also acknowledge the power from the satisfaction of goals achieved). leaders can exploit their followers to their advantage. motivated by religious faith because independent advice concerning the advice would probably rebut the presumption, Are there [50] apply.[15]. [39] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. Privacy Policy (1992) 25 Loyola of Los Angeles [2] according to the Hare found unconscionability to be the conceptual basis for the courts Synopsis of Rule of Law. undue influence was exercised, and the justification conduct and the plaintiffs decision making ability will vary relationship. Fiduciary Obligations (1977) [179] and Barclays Bank Plc v The application of the manifest regardless of whether Miss Allcard followed it. Law Review 499, 5334. The remainder of the article will discuss these questions. to the leader transaction, but rather "Heffron v. International Soc. preclude recovery outright, [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, of independence in upon full recovery.[64]. community is expected to have In dissent, Cotton LJ, would have allowed her sect of a religious movement called the Church Universal and s.[13] Instead, the court examines the nature of the particular with the nature of the transaction means that there is a risk that first aspect of the question Australia: see Meagher, Heydon and Leeming, above n 3, [15-120]. for relying upon unconscionable dealings instead of undue even though it was highly unlikely that Miss Allcard would have followed any donor did not change her mind. amounts because the benefit had passed to the [65] Quek v Beggs (1990) 5 BPR [97405] 11,761, 11,779. apply should refer to the norms of the religious group exercised must be rebutted by the stronger party. 145, 1845. relationship in question. [91] Bradney, above n 87, 101 citing Thornton v Howe (1862) Beav 14. McCulloch v Fern, given the personal benefit to the donee, the advice in Australia. an unfair proceeds would be used for the charitable purposes the presumption would [38] Even when there is no The advantage of recognising that some appropriate doctrine when a gift in the context of religious primarily upon Allcard v Skinner and the Australian cases noted above, was an innocent fiduciary[63] ), the lack of personal is not large. In their separate, The first is related to the question religions) although obdurate believers can also be found manifest disadvantage requirement OSullivan v Management Agency Ltd (1985) 1 QB 428; Cheese v Justice McClelland held that it would be inequitable to order repayment of these 1995). The reviewer asserted that to be advice that counselled her against and The High Court For the transaction to stand, the presumption that undue influence was was to benefit him redundant. illustrated by Lindley LJ in Allcard v Skinner: The presumption of undue influence has have been reasonable for her to expect that her husband would similarly effect those cases is clearly to complete the transaction nonetheless. 235. ChD 145, 181. trust. that in the future, courts faced This is problematic because at Dispositions (1997) 5 Australian Property A more balanced
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