Peter A Clarke

Given the hysterical political reportage on the demise of Malcolm Turnbull I am surprised they haven’t regarded today’s anniversaries as propitious; the assassination of Archduke Ferdinand in Sarajevo in 1914, leading to the outbreak of the First World War and Catherine the Great’s Coup in St Petersburg in 1762.  Why not draw those sort of bows?  Why not say Utegate is the political equivalent of a political war exploding bringing down the House of Liberal. Or Utegate precipitating a coup by Hockey (the Catherine figure).  They are about as logical as some of the prognostications doing the rounds at the moment. 

The kick off to this twaddle was Read the rest of this entry »

It is a fair bet that there will be a few more entries onto the austlii site in the Australian Football League v Stadium Operations a dispute between the AFL and the owners of Etihad Stadium about use of the stadium, naming rights etc. The opening round, in court at least, was the  decision by Warren CJ regarding a preliminary discovery application.  The AFL was generally successful.

Preliminary discovery is a potent but poorly understood process.  There seems to be a reflexive reluctance to make the application.  Warren CJ has provided a good encapsulation of the main principles. The starting point for her analysis is Read the rest of this entry »

In Friend v Brooker [2009] HCA 21 the High Court, in again taking issue with the New South Wales Court of Appeal, has undertaken a useful review of equitable principles vis a vis co ordinate liability. It has again opted for a stricter construction of equitable principles.

Facts (pars [10] – [ 37])

The facts are quite prosaic and depressingly familiar for those in small business. The Plaintiff/Respondent (Brooker) and Defendant/Appellant (Friend) establish an engineering business together, operating through a company. The Company performs a large job for the sum of $2.5million, in this case for a Council. The account is disputed, at least in part. This results in a liquidity crisis made all the more precarious because the Company’s indebtedness was secured by mortgages over Brooker and Friend properties. Brooker turns to a third party, a friend, for finance. The friend, through a company, loans Brooker $350,000 securing it with a mortgages over properties owned by Brooker family members as well as a guarantee by Brooker. Of the sum lent $330,000 was applied to discharge the Company’s debts. The Council ultimately made payment of a significant amount of the monies outstanding, $900,000, to the company as per a settlement. Brooker, not surprisingly, wants to apply that sum to his outstanding indebtedness which had blown out to $1.1million.

The trial judge dismissed Brooker’s claim and found there was no agreement. The Court of Appeal found, by a 2 – 1 majority, that Friend was liable in equity to contribute though on slightly differing grounds. The President found there was a common obligation arising out of the facts while McColl found there was a fiduciary obligation which required each director to meet an equal share of the capital contribution.

The Decision

Per French CJ, Gummow, Hayne & Bell.

The majority, in a comprehensive analysis, stated that in contribution matters equity is concerned with the equality of exposure of obligers (debtors) to an obligee (creditor). Equity intervenes to ensure that the debtors share a common burden, for example where a creditor seeks to recover only against one debtor, but not where all the obligers may derive some benefit. For equity to apply there must be a co ordinate liabilities regarding a debt (pars 38 & 39). The Court made it clear Read the rest of this entry »

Justice Beach continues to set a cracking pace in the judgment reaching and decision writing stakes with his, now typically, clearly written decision in C-Tech Laser Pty Ltd & Anor v Truong [2009] VSC 229 (15 June 2009) , and appeal from the Magistrates Court. Beach J together with the other recent appointments Judd, Vickery and Davies produce clear, concise and decisive judgments, much like Gordon J of the Federal Court.

In C-Tech Beach J considers the elements in a malicious falsehood claim. Malicious falsehood (also known as injurious falsehood) is not often pleaded. There was often no good reason to plead it because the facts generally supported a claim in defamation. The advantage of relying upon defamation was that it is actionable per se; with damages being at large. Further there is not need to prove malice in defamation. The reforms to Defamation with the Defamation Act 2005 means that, under section 9, most corporations are precluded from suing in defamation. With the amendment to the defamation law (in the main a great improvement) pleading malicious falsehood is a legitimate response to a tortious wrong. The issue of malice still provides evidential challenges however often evidence of the accompanying or subsequent behaviour of the putative defendant can be relied upon to draw that inference.

The facts

The Appellant’s causes of action were malicious falsehood and unlawful interference with business.

The Appellant pleaded Read the rest of this entry »

Some more interesting though hardly surprising offerings on the Bill/Charter of Rights debate.  Timothy Watson posted Dragged kicking and screaming: towards an Australian bill of rights on the most recent On Line Opinion.  Watson has conducted an analysis of the coverage to date.  How dare he!  Not a bad article.  Michael Tate’s offering, Dangerous charter, is just plain silly.  Even using Lenin’s reference to Australia’s 1913 election as a hook to attract the reader’s attention (but it is more in this article) is as ridiculous as it is obscure. Where Tate gets it wrong in the specifics, rather than his overall flawed approach is to somehow suggest the courts will delve into the minutiae of the delivery of health services.  Wrong on any assessment of how Charters operate.  More to the point, assuming the presumption is correct, all a court would do is make a finding of incompatibility.  So what! It is far from dictating.  The new angle to this debate is Tate saying that the Senate Standing Committee for the Scrutiny of Bills does what the Charter is envisaged to do.  Wrong.  The Committee system of the Senate is valuable but its effectiveness is compromised by its membership and the nature of the legislation.  It splits on party lines when a “hot bill” lands in its “In Tray”.  Hardly a comparison. 

Peter Cosgrave has done an audio on ABC’s Big Ideas.  A fairly predictable rehashing of the arguments. 

So which cubby hole in Owen Dixon East will Peter Costello call home away from home.  Not that I know whether he will be returning to the Bar but it is as good a piece of prediction as the conventional media has come up with. 

The Age’s coverage is typical of the analysis through the rear vision mirror.  Michelle Grattan’s piece The almost-leader bows out from his half-world is typical.  All of a sudden she was able, with clarity and certitude to explain what was happening in the Liberal Party room and his lack of support.  Hard to believe she acquired this knowledge in the 12 hours (less if deadline is factored in) since the announcement.  What was stopping her printing this sort of analysis Read the rest of this entry »

Roy Morgan’s annual survey of the professions finds lawyers rating 14th out of 30 in the trust and ethics stakes, stuck between bank managers and public servants. Lawyers dropped 5 points from 2008 but 2007 – 2008 was something of a bumper year in the trust stakes. Nurses rate the highest while car salesmen rate the lowest. I am surprised that estate agents rate higher than journalists. I always thought we admired those who write fiction. The press release stated:

In the annual Roy Morgan Image of Professions survey 89% (unchanged in a year) of Australians aged 14 and over rate Nurses as the most ethical and honest profession — the 15th year in a row since Nurses were first included on the survey in 1994.

Pharmacists (84%, down 2%), Doctors (82%, up 3%) and School teachers (76%, down 2%) have been consistently ranked near the top while Dentists (69%, down 1%), Read the rest of this entry »

The legal section in today’s Australian produces three separate offerings on the Charter of Rights debate (if that is a correct assessment).  The banner story is Turmoil hits drive for a bill of rights, basically highlighting the varying degrees of support for a Charter of Rights with some querrying its constitutionality.  There is hardly going to be consensus amongst the various Bars and Law Societies so to that extent the article is not surprising.  The next article is the con, subtley titled The pro-bill of rights hoodwinkers’ handbook It is a fairly blunt straw man article.  Attribute a proposition to one’s foes in fairly stark and clumsy terms and then proceed to knock it down.  That is not to say the proposition doesn’t partly encapsulate some of the propositions but it is in the main, good old fashion misrepresentation.  I can’t let Propositions 3 and 4 to pass without comment:

Ploy No 3: Deliberately elide a) giving judges more powers and b) getting more protection of human rights. Branson says: “Every other Western democracy has more comprehensive protection of human rights than Australia.” Garbage. Look at the scope you have to speak your mind here, and then compare it with Canada and Britain (where they have powerful bills of rights). You can say more here.

• What tosh!  Read the rest of this entry »

Today’s Times article The art of interrogation is a fascinating, though disappointingly brief, analysis of  the difference between interrogation, favoured by US law enforcement, and the interview, as practised by the UK and Australian police.  The broad conclusion is that the interrogation technique is more about getting a result than the truth of a matter and is manipulative in both process and outcome.  The interview, by contrast, is therefore a more effective and ethical approach to investigating crimes.  In the main it is hard to argue with that. But…….. I have read enough records of interview to see police run with both approaches in the course of a sitting.  

In that vein it is sobering to read how the police behaved in Ogden v Bells Hotel Pty Ltd [2009] VSC 219 (5 June 2009).  Williams J, not noted for hyperbole, recounted how the police dealt with a suspect (with questionable basis) during a raid and the subsequent interview:

108 On 3 April 2006, members of the Armed Offenders Squad arrived at Ms Ogden’s house when she was asleep in bed, at 6.30 a.m. They stated that they had a search warrant and were looking for $50,000 and a gun.

109 In the course of the search that followed, Read the rest of this entry »

I had the pleasure of listening to Robert McClelland addressing the Commercial Bar last night.  It wasn’t a bad address (reproduced below) about what wonderful things he has in mind for litigation in the federal sphere. It even got a report in today’s Australian.  While he is a member of Cabinet he doesn’t appear to be a driving force (at least in public) in this government.  That place seems to be reserved for the  Swann, Tanner, Gillard, Faulkner, Albanese with wonderkids like Bowen and Arbib rushing up.  He is almost a cookie cut out of a down to earth hard practical member of the NSW Right. 

These days the Attorney General’s role is very much in the second rank.  It was not always thus.  Up until the 1960s the role was occupied by very serious political players including Alfred Deakin, Billy Hughes, John Latham Robert Menzies, Doc Evatt, Garfield Barwick and Tom Hughes with not a few ascending to the High Court: Isaacs, Latham, Evatt (pre AG), Barwick and Murphy.  In the last 20 years the position has been filled by some notables but generally stolid types.  The one serious positive about McClelland is that he has been in the litigation trenches and knows how the system operates.

Here is the speech: Read the rest of this entry »