Peter A Clarke

Abraham Lincoln had good advice about writing a letter when angry. Write the letter, you will have a good time getting your feelings onto paper and feel the better for it. Leave it overnight. Return the next day, burn the letter and writer another. Good advice , bad for defamation lawyers. It should be mandatory for lawyers who put pen to paper in anger.

There can be a fine line between being forthright and acting without fear or favour on behalf of one’s client and being offensive, provocative or, the using the catch all phrase, bringing the profession into disrepute. The Full Bench of the ACT Supreme Court considered this question in DAVID LANDER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY, The court reviewed a decision of the Legal Practitioners Disciplinary Tribunal that David Lander, had by statements made in a letter to the Chief Executive of the ACT Department of Education and Training was guilty of unsatisfactory professional conduct.

The letter (republished in full at par 4) leaves very little need for explanation. The following extracts demonstrate why it prompted a complaint Read the rest of this entry »

In Sopov & Ors v Kane Constructions Pty Ltd the Court of Appeal again traverses the well worn path of applications for stay of execution. The applicants sought a stay of a Court of Appeal decision pending a special leave application to the High Court. I most recently analysed the approach to stays by the Court of Appeal in my post on Gangemi v Osborne.

In this proceeding the applicants/appellants sought to distinguish a stay application to the High Court from other stay applications, submitting that the former did not require special or exceptional circumstances (par 45). The other bases for the application, which constituted exceptional circumstances were:

• the applicants did not have the resources to pay the judgment debt and their accountant said they would face bankruptcy if the orders were enforced. This meant they could not prosecute their appeal (par 45);
• there was a substantial prospect that special leave would be granted (par 46);and
• the respondents had already received substantial monies (par 46)

At paragraphs 52 & 53 their Honours restated the well settled proposition that the principles applying to stays pending a High Court special leave applications do not differ from other stay applications, stating: Read the rest of this entry »

The down side of ducking a warrant is that one must be careful where one visits.  The local constabulary can get quite excited when they find an international fugitive in their midst.  The usual practice is to arrest first and then work out the extradition issues.  And in the belt and braces stakes Switzerland is formality writ large.

So what was Roman Polanski thinking when he wandered into Zurich to pick up an award and the only thing shiny he gets are  matching and linked bracelets.

Last year I saw three documentaries of note at the Melbourne Film Festival: Roman Polanski: Wanted and Desired, Trumbo and Gonzo: The Life and Work of Dr. Hunter S. Thompson. The subject of each documentary were (and in the case of Polanski still are) remarkably talented but flawed individuals; Trumbo, a brilliant script writer and author who was remarkably naive and child like in matters of every day life, Hunter S Thompson, a brilliantly evocative journalist who invented gonzo journalist but who quickly became a drug  abusing utterly self indulgent caricature of his early promise.  The HBO documentary on Roman Polanski is a very professional piece of work.  It covers his troubled early life, his creative genius, his fairytale romance with Sharon Tate, his compulsive cheating, her death and the effect on him and…. of course.. his agreement to plead guilty to the statutory rape of a thirteen year old.

Where Wanted and Desired fell down badly Read the rest of this entry »

Prolonged delay between issue and hearing on a damages/liquidated sum claim often means a significant interest component in a final award for a successful plaintiff. That can be the subject of a significant argument and separate determination, as the Court of Appeal did in Giller v Procopets (No 2) [2009] VSCA 72 and, a case I was and remain involved in, Walker & Anor v Hamm & Ors (No 2) [2009] VSC 290. Both decisions carefully and clearly set out the applicable principles associated with the award of interest and when delay or other factors justify adjusting the period of time over which interest should be calculated and/or varying the rate.

In Kalenik v Apostolidis & Ors (No 2) Hargrave J again considered those principle. The default position is

“..interest ‘must’ be ordered for the whole of the period after the issue of the writ unless ‘good cause Read the rest of this entry »