Corey Haim ate up the scenery like it was fairy floss. Most of his other works passed me by.  Unfortunately post adolescence was not a Ron Howard experience but the more typical drift into obscurity and drugs.  Corey Feldman hasn’t prospered either.  It is tragic that Haims dies at 38.  It is almost as bad that his death will be a revisiting of the usual morality tale.

Vale Corey Haims.

His Honour sets out the principles at [5] & [6] regarding the principles applicable in removing caveats under section 90(3) of the TLA, namely:

• it is broadly analogous to determination of interlocutoryinjunctions – the power is discretionary;
• the caveator has the onus of establishing there is a serious question to be tried that he has an interest in the land; and
  
• the balance of convenience favours maintenance of the caveat until trial;

The evidence

The agreement, reproduced at [7], in this case is exhibit A as an example of what to avoid when seeking to make a claim for an equitable right over property. The agreement seemed to relate to an agreement between the Plaintiff/sole proprietor’s husband and a putative business partner regarding purchase of shares in a pet food business.  His Honour forensically analysed the many deficiencies in the agreement, at [17] – [26].  The first observation made was that it consisted of 5 recitals and no operative clauses. The problems included the agreement:

• requiring the husband to pay $3 million for 15% share in a company that had not been established at the time of the agreement;
• referring to the parties a creditor and debtor respectively.  Hardly consistent with an investment;
• in one part limiting the interest to $3 million, at another recital registering the interest for not less than $3million.

Unusually in such applications the deponents were cross examined and his Honour found that that sole proprietor never knew of this agreement.  In examining the enforceability of the agreement his Honour noted that no demand for money by the business partner was made from August 2005 until 2007, that the husband had no interest in any corporate entity which might be the vehicle for the pet food busines and there was no evidence of a company conducting a pet food business.  The court found it relevant that notwithstanding a “clause” providing for the execution of an unregistered mortgage within 7 days of 8 August 2005 in favour of the business partner nothing had been done.  In such circumstances that constitutes evidence that it was not a caveatable interest (see [29]).

This application was made with the backdrop of Family Court litigation between the sole proprietor/wife and husband.  In that context it was relevant to consider the possible outcome of the litigation and the disposition of the property between the husband and wife.  The court found it likely that the wife wold remain the sole proprietor of the property.

While effectively His Honour found in favour of the plaintiff on the serious question issue he also found the balance of convenience also favoured her.  The husband and his business partner were engaged litigation which was moving at a “lamentably leisurable pace”, a factor which may prejudice timely resolution of the Family Court proceedings.  His Honour, at [44] found that the husband’s lawyers are seeking to dleay the trial of the Family Court proceedings on the basis of the claims made by the business partner.

Issues

Applications for removal of caveats are a regular feature in the Practice Court.  It is important to carefully analyse the underlying factual basis for the equitable claims. Those that rely on vague agreements, notoriously involving family members, can be susceptible to challenge.

I have a soft spot for Bob.  I admire someone who has the discipline to tame his inner demons to achieve his goal. And he did that during a very successful 5 years.  After 1988 his government drifted into complacency and chased the cheap seats to stay in charge.  I wasn’t sorry to see him go.  But his first five years he led a stellar team who left a lasting legacy of which we should all be proud.

His speech at the Chamb ers &Co celebration was vintage Hawkie, punchy, well delivered and just a bit too long.  My mobile phone went off and boy was I given a sort of dressing down for it.  Sort of because when a fortysomething shrewish five foot nothing self important equity trader  who tries to pull off  a mini skirt and a thick black and gold top tries to tell you, in her best Camberwell accent, that my phone ringing during a speech is outraaaaeggggououuuuuuuus it is hard to keep a straight face.  I did all the wrong things; asked whether I was being told off, telling her I was a conservative and that I couldn’t give a flying continental (or saltier terms) what she thought.  And I don’t.  Pretentious wankers are my preferrred clay target. And this drongo filled all the prerequites for full time loathing.

Well Done Robyn……………………………………………..Now about those briefs……………………..

What is really interesting is that this threat of litigation is part of a strategy by the Royal Family to curb intrusive coverage.  The report says:

Middleton’s claim follows a decision by the Queen to crack down on alleged intrusions into the private lives of the royals. Middleton’s action may also be an attempt to restrain photographers ahead of an engagement to the prince.

That litigation is being used assertively to protect a right is nothing new.  Defamation laws were used with flagarant abandon until recently by politicians and business types to shut down stories. That bullet is still available to those with deep enough pockets but it is not nearly as dangerous a weapon these days.  Active case management, reduced awards and other ways of making amends evens up the field somewhat. I didn’t like the abuse of the defamation laws then and won’t like deep pockets using the threat of litigation to scare of coverage by the press as a matter of policy rather than a real and pressing case of abuse. Middleton has a real beef in this case. The photographs were of her either playing tennis at a private property or, more concerning, inside her house with her family.  The outside shot was supposed to be taken from a sidework nearby with an ordinary camera.  The argument that what the photographer saw would have been seen by anyone passing so where is the violation of privacy.  That is not the law and unlikely to be the law in the future.  The JK Rowling (Murray) High Court ruling and Campbell House of Lords decisions see to that.  In both cases the plaintiffs were in a public place.

The House of Commons Culture, Media and Sport Committee has just published a report on press standards, privacy and libel. Unlike the ALRC it says that there is not yet a need for new, specific privacy laws in the UK.  And yet the same Committee had recommended in 2003 that the Government pass privacy laws so that people would know exactly what protection they could expect. The Government rejected that plan. Either it is a very practical committee or has had the light seen to it by a whip or two in the Government.

Max Mosely, using his not so new not so new notoriety made some suggestions that are about as practical as relicensing papers, including enacting a lwww that forces journalists to contact people who will feature in their stories before publication to allow them to take out injunctions to try to stop publication before it happens rather than seek damages afterwards.  Sometimes that is ethically required but makng it a law.  Breach will no doubt attract sanction.  Made for abuse. And injunction as he ackwnowledged, saying”

“[The newspapers] should be obliged, in cases where they know that the person is going to object to that publication and there is a substantial chance that he will go to court and could get an injunction, that they should notify him,”

and

“It is, I would suggest, inconceivable that a judge, where there is serious investigative journalism – unless there are other factors which one cannot speculate on – would give an injunction because that is exactly the basis of a free press, that you can have investigative journalism and it is in the public interest.”

The Committee goes somewa y towards Max’s suggestion by amending the Press Complaints Commission’s Code, saying:

“We recommend that the PCC should amend the Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a ‘public interest’ test, and should provide guidance for journalists and editors on pre-notifying in the Editors’ Codebook,”

As usual with banned ads which are in the modern vein of burlesque the complaint is objectification of women.

1 Take a pencil to write with on aeroplanes. Pens leak. But if the pencil breaks, you can’t sharpen it on the plane, because you can’t take knives with you. Therefore: take two pencils.

2 If both pencils break, you can do a rough sharpening job with a nail file of the metal or glass type.

3 Take something to write on. Paper is good. In a pinch, pieces of wood or your arm will do.

4 If you’re using a computer, always safeguard new text with a ­memory stick.

Hard to go wrong there.  The odd thing is that Margaret Attwood in interview is deadly dull and almost ethereal. Roddy Doyle’s list is a hoot, a sample:

1Do not place a photograph of your ­favourite author on your desk, especially if the author is one of the famous ones who committed suicide.

2 Do be kind to yourself. Fill pages as quickly as possible; double space, or write on every second line. Regard every new page as a small triumph ­–

..

5 Do restrict your browsing to a few websites a day. Don’t go near the online bookies – unless it’s research.

6 Do keep a thesaurus, but in the shed at the back of the garden or behind the fridge, somewhere that demands travel or effort. Chances are the words that come into your head will do fine, eg “horse”, “ran”, “said”.

7 Do, occasionally, give in to temptation. Wash the kitchen floor, hang out the washing. It’s research.

8 Do change your mind. Good ideas are often murdered by better ones. I was working on a novel about a band called the Partitions. Then I decided to call them the Commitments.

9 Do not search amazon.co.uk for the book you haven’t written yet.

And on they go.  Precious.  The second part is of the article is great too.

All of this Keating outrage would be more easily believed if he had thought to look at reforming the law while he was in government, hell while he WAS the government. It is not like there was no call for a statutory right to privacy during his turn on the bridge . His sudden conversion to the cause has the same moral weight as Sarah Murdoch’s Damascene conversion to non airbrushed photographs of models. All very easy to sink the slipper on the fashion world and the mags that thrive off it when you have made your fortune from it and are well established in a new career, a none too eloquent advocate of media friendly causes. Had she spoken out while the Sports Illustrated Model her convictions would be a little more believable. Always nice to hop on a passing bandwagon and take up a luxury seat.

• having a Single Set of Privacy Principles. 
• Enhance the Privacy Commissioners Powers and functions.  And about time.  The role and actiivity Privacy Commissioner has been a disappointment.  But only part of that is due to the lack of powers.  Culturally there needs to be a more assertive role taken.  Unfortunately even in the revised form the lack of sanctioning power or ability to bring a civil claim (ala ACCC) will limit its effectiveness. 
• implementation of a three tiered scheme for privacy codes.
• expanding the credit reporting.  This will be very signficant.  In the Senators words:

In order to allow credit providers to undertake a more robust assessment of an individual’s credit risk, the Government will make changes which allow five positive datasets to be included on an individual’s credit report.  One of these will be repayment history, but the Government recognises that this information must be used responsibly, so it won’t be made available until the Government’s new responsible lending obligations are in place under the National Consumer Credit Protection Bill 2009

• Changes to health records privacy to allow for transfer of health records or access if the premises where they are located closes.
• Protections for cross border data flows with enforceable rights by the individual;

What the Government has shied away from is whether it will agree to a statutory right of privacy.  We will have to wait until next year.