March 10, 2014
One of the modern myths of American jurisprudence is the primary the Constitution has always given to the First Amendment. In that context the media has a significant, almost unassailable, defence when facing a claim of defamation from a public figure. It was not always thus. In fact pre 1964 US defamation law was not much different to that of its cousins across the lake in the UK.
It was the US Supreme Court decision of New York Times v Sullivan, 50 years ago on 9 March 1964, which elevated the First Amendment protections to its current position of primacy. That position has not been reduced, as some of the decisions of the Warren Court have been (such as the Miranda decision). If anything it has been bolstered.
The Atlantic covers the story of New York Times v Sullivan in Today Is the 50th Anniversary of the (Re-)Birth of the First Amendment. As usual a thoughtful and engrossing account of how the decision came about.
On March 9, 1964, a unanimous Supreme Court reversed a libel verdict against The New York Times in a case brought by Alabama officials who complained about a civil rights advertisement in the paper. The First Amendment, thankfully, hasn’t been the same since.
December 11, 2013
The Attorney General announced an Australian Law Reform Commission enquiry into traditional rights and freedoms in the context of Commonwealth Legislation that might restrict them. Given the commentary in the last 18 months this should hardly come as a surprise.
The press release provides:
NEW AUSTRALIAN LAW REFORM INQUIRY TO FOCUS ON FREEDOMS
The Attorney-General, Senator the Hon George Brandis QC, has asked the Australian Law Reform Commission (ALRC) to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges.
Senator Brandis said Read the rest of this entry »
December 9, 2013
Today the Federal Court announced the transition to complete electronic filing and storage by the end of 2014. Many in the profession have known for some time of the Federal Court’s preference for moving in this direction.
Details of the process are as follows (and found here):
Federal Court of Australia’s Electronic Court File
The Federal Court of Australia is an early adopter of the use of information technology to increase the effectiveness, efficiency and accessibility of the Court. Technology has, and will continue to change court operations, similar to the ways in which technology has affected business practices across the globe.
The Court is currently undertaking an important change in its internal operations – it will transition from paper based information management to digital files. This transition is called the Electronic Court File (ECF) project.
This change will primarily affect the internal functions of the Court but will also provide opportunities for Court users to expand how they interact with the Court.
The ECF project is a further step towards the creation of a single web-based interface, which will effectively integrate the electronic provision and management of information and services. We use the term my files to describe the service. Registered court users will be able to see immediately a list of their files or more precisely, the information or documents they are authorised to access on the Court’s files. They will be able to undertake electronic interaction with the Court and other court users, in respect of my files (ie. your files).
The key aims of the project are to:
December 2, 2013
The High Court will hand down its decision in Willmott Growers Group Inc v. Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation) In its capacity as manager of the unregistered managed investment schemes listed in Schedule 2 and Ors this Wednesday 5 December 2013.
For those, like myself, who practice in the corporations and insolvency area it is a long awaited decision with significant ramifications.
The High Court transcript provides:
MR G.T. BIGMORE, QC: May it please the Court, I appear Read the rest of this entry »
November 25, 2013
The Federal Court Rules 2011 have been amended to support the first stage of the implementation in the Federal Court of an electronic court file.
The amendments will make relatively minor changes to such things as the use of stamps and seals; preparation and lodging of documents; redacting, amending and removing documents; and producing documents for inspection or in compliance with a subpoena.
According to the notification from the Fedeal Court the the Amendment Rules will:
1. amend subrules 2.01(2) and (3) and paragraph 39.35(1)(b) and Schedule 1 to clarify that either the seal of the Court (for convenient processing electronically) or the stamp of a District Registry (for convenient processing in paper) can be used;
2. insert new rules Read the rest of this entry »
This practice note deals with cross-border insolvency co-operation with foreign courts. It is found here.
The amendment is the inserttion of paragraph 6 Read the rest of this entry »
The Federal Court has issued a new Practice Note APP 2, dealing with the Court’s requirements for Appeal Books and preparation for hearing. It is found here.
The amendments include Read the rest of this entry »
November 24, 2013
The Court of Appeal in Wolfe v Permanent Custodians  VSCA 331 considered issues of duty to co operate in the context of a contractual relationship and unconscionability by a creditor in recovery proceedings against a defaulting mortgagor.
Permanent Custodians Ltd (“Permanent”) holds a first mortgage over a property in Pascoe Vale which secured a loan to Mr Wolfe and his former partner . In 2008 there was default on the loan. In August 2009 Permanent obtained default judgment against Wolfe, a default judgment for the loan and for possession of the Property against his former partner and issued a warrant of possession. Eviction by the Sheriff was scheduled for the week commencing 4 December 2009 . Wolfe entered into an arrangement, on terms set out in a letter from Permanent’s solicitors on 1 December 2009 (the “1 December 2009 arrangement”).
Those terms were, at ,relevantly:
October 14, 2013
The Supreme Court considered an urgent application for an interlucotury injunction in a privacy related matter in Candy v Bauer Media Limited  NSWSC 979. The urgent application was made on 20 July 2013 with the decision made and reasons published that same day.
The plaintif, Holly Rachel Candy, is better known in Australia by her Maiden Name, Holly Valance. Sometime Soapie star who later developed a musical, and occasional movie, career. Now a celebrity in the UK married to a wealthy businessman. For those consumers of gossip magazines and celebrity websites this is almost trite. Nevertheless it is not knowledge that would be regarded as notorious and it does not seem to have made its way into the affidavit material with his Honour stating:
- The plaintiff is an actress. She is an Australian Read the rest of this entry »
Practice Note CM 17 released on 1 August 2011, taking effect on 9 October 2013. It is found here. It is identical to the revoked CM 17. Both notes are identical except regarding the Opt Out Notice, Form 21. The media release explains the changes as
On 9 October 2013 the Chief Justice revoked Approved Form 21 – Opt Out Notice approved for the purposes of the Federal Court Rules 2011. At the same time he approved a revised version of this form.
The amendment to this form inserts an address to which the completed form should be sent
The practice note provides:
1.1 This Practice Note Read the rest of this entry »