Peter A Clarke

 Justice Byrne in Gunston v Lawley gives a very useful and thorough analysis of tortious claim against builders, architects and the duty of care owed by principals and subcontractors in the building context.  It ws an appeal from a decision of VCAT which found that the owners claim against the soild engineer and director of the builder were not liable for cracking and distorition to 2 building but that builder, architecural draftsman and building surveyor were.  The Tribunal found that the provision of plants in the drawings was negligent insofar as it would affect the soil moisture which would have an effect on the land and the draftsman did not make allowance for this in placing the appropriate number and strength of masonary joints.  VCAT found the soil changes caused the cracks in the building.  Draftsman negligent.  He appealed.

In the midst of giving the grounds of appeal a working over his Honour made some very useful points often missed by practitionerrs in the rush to deal with the injustice of a case.  He said

14 I am, on this appeal, not concerned to revisit the findings of fact of the Tribunal; appeal is permitted only upon a question of law. In these circumstances, grounds 1-10 in the notice of appeal will succeed only if it is demonstrated that there was no evidence which could support the findings.

Sounds obvious but an error made on a regular enough basis.  In terms of wording of the grounds of the Appeal he commented, at par 17.

17 And so, grounds 1, 2, 3, 4 and 5 are introduced by the words, “It was not open on the evidence for the Tribunal to have concluded that…” These grounds appear to have been drawn with the decision of Batt J in Roads Corporation v Dacakis[10] in mind. There, after a careful analysis of the cases, his Honour concluded that a finding of fact may be impugned as an error of law only where there is no probative evidence to support it. It is not sufficient for an appellant to show only that the finding is not reasonably open on the evidence. It may be that the omission of the word “reasonably” in grounds 1 to 5 in this appeal was intended to amount to an assertion that there was no probative evidence to support the finding. If this be the case, it is difficult to understand why the drafters did not say so, as they did in grounds 6 and 7. In the Roads Corporation case, Batt J also concluded that, where the appellant under a regime such as the present, which permits appeal upon error of law, attacks an inference drawn rather than a fact found, this is permissible only where there is no basis for the inference. Since inference is a logical process which draws a conclusion from other facts or conclusions, the inference will amount to an error of law only where it is not reasonably open on the facts.[11] This means that the inference may not be impugned as an error of law on the basis that it is illogical or even that it is demonstrably unsound; it must be an inference which is not reasonably open to the Tribunal.[12]

Byrne’s above commentary is particularly helpful and a pithy explanation of matters which easly bog commentators down.

In this case the duty of care in issue is that of a subcontractor.  The builder engaged the architectural draftsman.  On that point Byrne said:

21 Counsel for the architectural draftsman contended that, so understood, the statutory obligation was no more than a restatement of the professional’s duty of care owed to the client.[17] Insofar as this is a tortious duty, it is that the professional “must use reasonable care, skill and diligence in the performance of the work he undertakes”.[18] Voli’s case establishes that such a duty may be owed to protect a non-client from physical harm. The present case involves what has come to be called pure economic loss, a loss which was not compensable under the law of negligence as it stood in 1963 when the Voli case was decided. The High Court, in a series of decisions over the past 30 years, has established the existence of a cause of action in negligence for this loss, but the ambit of the duty of care which underlies this cause of action is somewhat uncertain. It is, however, well established that something more must be shown than that the loss of the plaintiff was reasonably foreseeable by the defendant.[19] The further requirements will depend upon the circumstances of the case and, in particular, upon an examination of what the High Court has called the “the salient features” in order to determine whether the relationship between the plaintiff and the suggested negligent party is sufficiently close to impose an actionable duty of care.[20] In a case such as the present these will include reliance by the plaintiff, the acceptance of responsibility by the defendant and the vulnerability of the plaintiff in the sense that it was unable to protect itself from the consequences of the defendant’s want of due care.

22 Insofar as concerns the architectural draftsman, the Tribunal addressed this question by reference to the analysis of the High Court in Bryan v Maloney[21] and Woolcock Street Investments Pty Ltd v CDG Pty Ltd,[22] cases which, in some respects, resemble the present because they both arose from defects to buildings which were the consequence of neglectful design or construction. In each case, the plaintiff purchased the defective property but without being aware of its defect or that this defect might cause distress to the building as, in fact, happened. The suggested negligent party in Bryan’s case was the builder engaged by the proprietor and, in Woolcock’s case, the engineer who designed the footings. In their consideration of these cases, the High Court was concerned that such a claimant must first show that the defendant owed a duty of care to the original owner, that is the proprietor at the time of the negligent act.[23] This is an issue anterior to the principal issue in the present case because, if such a duty did not exist, the plaintiff as a subsequent owner must fail. If it did exist, then the plaintiff, as subsequent owner must then establish that this duty of care is owed to it as well as to the proprietor.

24 Counsel for the architectural draftsman submitted that their client, like any sub-contractor or supplier, owes no such duty except, perhaps, when their exists some special relationship between it and the proprietor.

27 There is no general principle of law that a sub-contractor cannot owe a duty of care to a proprietor with which it has no direct contractual relationship. Furthermore, it is not helpful to consider the existence of a duty of care in a vacuum: it will depend upon the relationship between the parties with respect to the negligent activity in question and with respect to the loss which the proprietor has suffered as a consequence. This may arise from the fact that the sub-contractor is nominated by the proprietor or that its work was otherwise the consequence of direct dealings between them. In Valleyfield Pty Ltd v Primac Ltd[27] Cullinane J saw as significant that the relationship between the relevant parties before him was “a close one almost approximating that which exists between contracting parties.”[28]

In the present case, the proprietor and the builder were related companies and were controlled by a common director. The architectural draftsman spoke of receiving instructions from this man whom he referred to simply as “Geoff”. His relationship with the proprietor was therefore very close.

28 The feature which is of great importance in the cases, at least since 1999[29] in determining the existence of a duty of care in the architectural draftsman to the proprietor is vulnerability, that is, the ability of the plaintiff to protect itself from the loss in the event of negligence. In the normal case, where duty is said to be owed by a sub-contractor to a proprietor, this requirement may be difficult for the proprietor to satisfy. There will usually be a contract between the proprietor and the head contractor which will contain covenants protecting the proprietor from defective work. Even if it does not, it will be difficult in the typical case for the proprietor to persuade the court that it did not have the ability to protect itself in this way.[30] In the present case, the terms of any contract between the proprietor and the builder are not known. It may be that the relationship between the two companies was so intimate that there was no formal contract at all. Even so, it is difficult to suppose that the builder undertook the work for the benefit of the proprietor otherwise than pursuant to some contractual arrangement, express or implied, between them. The fact remains that the proprietor had the ability to protect itself by contract from the consequences of the architectural draftsman’s defective work. In any event, if there was in existence a building contract, it would contain the statutory implied warranties under s 8 of the Domestic Building Contracts Act 1995 if, indeed, these were implied in respect of the design work in this case.[31]

29 An associated consideration which will often be important with respect to the relationship between parties to a building project, will be the activity in question. It will often be the case that the proprietor is a professional developer, a person who may be assumed or in respect of whom it is demonstrated, to have a familiarity with ordinary construction aspects of the work. It may be that the activity in question is not remote from everyday experience. And so, for example, when the activity involves a skilled and technical activity, for example, the provision of certain electric or electronic services, the Court will more readily infer that the required relationship exists. The position might be otherwise where the activity is relatively unskilled and a deficiency in the work was readily apparent. Another factor may be the degree of involvement by the proprietor in the construction activity.

32 It seems to me that the present law in Australia does not admit a cut and dried answer to the existence of this duty. What can be said with some confidence is that, in a typical domestic building contract where the proprietor is a developer rather than a layperson with little or no experience or expertise in construction matters, the proprietor’s assertion that a sub-contractor owes a duty of care to it with respect to the quality of the work performed by the subcontractor will ordinarily face difficulty in establishing the requirements of vulnerability or reliance. Each case, however, must be examined in light of the facts which are said to give rise to the necessary relationship.

36 In its reasons,[39] the Tribunal referred to statutory environment in which domestic building work is carried out since the 1993 statutory reforms. Since that time, there has been in force a legislative structure which imposes several liability upon those involved in building work and, at the same time, requires them to carry insurance. This legislation has changed from time to time over the past 15 years but it is clear that the Tribunal was the more ready to impose a duty of care because of these legislative features.[40]

While this legislative regime for allocating risk may be a relevant consideration, it is not sufficient to warrant the imposition of a common law duty of care where the required relationship is not present. Nor does Regulation 15.2 fill the gap.

38 I am satisfied that the second question of law must be answered in favour of the architectural draftsman. The Tribunal erred in finding that the architectural draftsman owed to the owners a duty of care to avoid their suffering the economic loss which they did suffer in relation to the buildings.

54 The provision for apportionment is found in s 24AI(1) of the Wrongs Act:

(1) In any proceeding involving an apportionable claim—

(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant’s responsibility for the loss or damage; and

(b) judgment must not be given against the defendant for more than that amount in relation to that claim.

55 Part IVAA, generally, is concerned with certain claims; its apportionment regime is not available to all claims where two or more wrongdoers are responsible for a claimant’s loss. The question whether such a claim is apportionable may depend upon the legal characterisation of the claim, as for example one arising from the failure to take reasonable care or as one excluded by s 24AG. It may also depend upon the relief sought, for the regime applies only to certain claims, which are claims for damages as defined.[53] It may also depend upon the findings, for a claim where fraud is found is not apportionable.[54]

56 I return to s 24AI(1)(a) which speaks of “the loss or damage claimed”. There is, of course, very often a distinction between the quantum of the loss or damage suffered which is the subject of a claim,[55] the quantum of the loss or damage proved and which is, therefore, recoverable and the quantum of the loss or damage which is in fact recovered.[56] The common law has never had any difficulty with a plaintiff obtaining a series of judgments which, if all were satisfied in full, might mean that it received more than the total amount of its proved loss or damage. What is not permitted is that the plaintiff actually recovers in the aggregate a sum greater than its proved loss or damage. This is the rule against double compensation referred to in Bonchristiano v Lohmann.[57] So much was not in issue before me.

57 Within the proportionate liability regime of Part IVAA of the Wrongs Act, the same principle is adopted. Section 24AK permits a plaintiff to seek and obtain in a subsequent proceeding an order for damages in respect of the same loss and damage as was the subject of an earlier proceeding. The terminology of this section and s 24AL is a little awkward. It may be supposed that, in the first proceeding, the plaintiff would have obtained orders against all of the concurrent wrongdoers before the Court[58], which in total would amount to 100% of its loss or damage, for the task of the Court in that proceeding was to determine responsibility for that loss as between all of those concurrent wrongdoers. The second proceeding, against another concurrent wrongdoer, could not disturb the allocation of responsibility made in the first proceeding because none of the wrongdoers then before the Court might be joined in the subsequent proceeding.[59] The consequence of a successful prosecution of the second proceeding, therefore, would be to give to the plaintiff an order which, together with those previously made, would exceed the total loss and damage suffered. This indicates that the intention of s 24AK(2) is not to prevent double judgments.

58 With this in mind, I return to s 24AI(1). Paragraph (a) is concerned with liability; paragraph (b) with judgments. In each case, the section speaks of an amount which marks the limit of each concurrent wrongdoer’s liability and the limit of the permissible judgment against that wrongdoer. In each case the amount reflects the proportion of “the loss or damaged claimed” which is found to be just having regard to that person’s responsibility for that loss or damage. I have been troubled by the word “claimed” in the quoted phrase. This cannot refer to the quantum of the claim for this might be reduced after trial. It must refer to the type of loss or damage claimed, leaving to one side the quantum of this which has been established. I construe the expression “loss or damage claimed” as a shorthand version of the expression “the proved loss or damage which is the subject of the claim”.[60]

59 The scheme of s 24AI is that any given defendant is at risk of liability and judgment for an amount limited to its proper share of the loss or damage the subject of the claim. This risk is not increased by dealings between the plaintiff and another concurrent wrongdoer. For example, a failure by that wrongdoer to pay its share does not increase the liability of any other defendant. Nor is it diminished by dealings between the plaintiff and another wrongdoer as, for example, the successful outcome of a subsequent proceeding under s 24AK. I speak here of the risk represented by the liability which has been determined in the first proceeding and the judgment given in that proceeding. Where, however, the plaintiff recovers money in the subsequent proceeding, the rule against double recovery may come into play to bring about some adjustment as between the wrongdoers.

60 The effect of the proportionate liability regime, therefore, is to transform fundamentally the relationship which exists between a plaintiff and a concurrent wrongdoer defendant. Where under a solidary liability regime each defendant is liable for the whole of the plaintiff’s loss, a payment by one must affect the liability of the other. It is for this reason that the plaintiff, after settlement with one wrongdoer which involves payment by that wrongdoer in diminution of the plaintiff’s loss, cannot obtain judgment for the total loss. In the proportionate liability regime, however, a payment by one concurrent wrongdoer is a benefit conferred on the plaintiff independently of its right of redress against each other wrongdoer. To adapt the dictum of Dixon CJ in National Insurance Co v Espagne,[61] the benefit of the payment made by the concurrent wrongdoer is intended for the plaintiff; it is not intended in relief of the liability of the others each to compensate the plaintiff to the limit of its proportionate liability.

61 This is, of course, not to say that the plaintiff has recovered from all of the concurrent wrongdoers payment which in total exceeds its loss or damage. Ms Lawley has received from the building surveyor some $49,000 more than was later found to be his proper share of her loss or damage. When the other concurrent wrongdoers make the payments which have been found to reflect their responsibility so that these, together with her $49,000 surplus, overtop the amount of her loss or damage, then the question will arise as to the fate of this surplus. In the meantime, there is no double recovery.

62 The question may be looked at from a different but related angle. Suppose Ms Lawley’s settlement with the building surveyor included a term that he not pay the settlement sum for 12 months. At the trial against the remaining wrongdoers should they be permitted to reduce her loss or damage for the purposes of s. 24AI by the amount of the $49,000 surplus? What would be the result if the settling wrongdoer failed to make the agreed payment and could not be compelled to do so? Should this be then brought to credit and the amounts of the judgments given against the remaining wrongdoers revised? It is difficult to see that Parliament would have intended such a result. These difficulties would be avoided if Part IVAA were interpreted to produce a regime where the forensic relationship between the plaintiff and concurrent wrongdoer defendants was seen as a serries of independent claims which were tried together as a matter of convenience.

63 In his careful reasons published after the second hearing in August and September 2006 the Senior Member addressed this question and reached a similar conclusion. He offered two further reasons to support it. It is that a settlement by a plaintiff with one concurrent wrongdoer at undervalue could not operate to increase the liability of the others; settlement at an over-value should not, in principle, operate differently. There is, therefore, some symmetry in the conclusion which he reached.

64 The second reason was one that attached itself to the particular difficulties of parties to litigation under the proportionate liability regime. I refer to the great difficulty of achieving settlement where agreement cannot be reached with all parties. It cannot be supposed that Parliament, which is properly concerned to minimize the cost of litigation to defendants as well as to plaintiffs and which is a supporter of mediation and ADR, should intend that the proportionate liability regime should increase the difficulties which face a plaintiff who wishes to settle with one of a number of defendants or those difficulties which face a defendant who wishes to settle with the plaintiff. The analysis proposed upon behalf of the architectural draftsman would make it extremely difficult for a single defendant to fashion an offer which would be attractive to a plaintiff and which, as the facts of this case disclose, would not be potentially dangerous for a plaintiff to accept. This would be the case where the fact of the settlement might have a bearing on the Tribunal’s determination as to the liability of the remaining defendants.

65 A further consideration is this. Under the proportional liability scheme a plaintiff is, in effect, suing each concurrent wrongdoer separately and recovers a separate judgment against it. This is such a fundamental change from the position which previously existed that courts must struggle to rid themselves of concepts which depend upon the outmoded joint and several solidary liability. The plaintiff under the new regime takes, in each case, the risk that any of the judgments will not be satisfied. Where a defendant offers a sum in settlement of the plaintiff’s claim, the plaintiff’s risk immediately changes. It is faced with an offer of payment which, if accepted and the payment made, fixes the risk of the litigation and the risk of recovery. Uncertainty is replaced by certainty. Before the payment is made the settlement fixes the risk of litigation and substitutes for the risk of recovery a new risk or benefit which will depend upon the terms of settlement. This risk may be a small one, as, for example, where the terms of settlement include some guarantee of payment or other security for payment. It may be a different one as, for example, where the terms of settlement are for payment by instalments. What is important is that it does not affect the risks of the other concurrent wrongdoers. They may still contend at the trial, as in this case, that the proportionate share of the settling wrongdoer was greater than that represented by the settlement. Indeed, their ability to do so may be increased as a consequence of the settlement where the settling defendant takes no further part in the proceeding and is therefore not concerned to minimise its responsibility for the plaintiff’s loss or damage. If, as a consequence, the settling defendant is fixed with a greater responsibility than would otherwise have been the case, the effect of the settlement would be to reduce the judgments which are recovered against these other wrongdoers. This is an added risk which the plaintiff assumes by settling with a defendant. In these circumstances, the value of the settlement to the plaintiff cannot be assessed by having regard only to the amount agreed to be paid under its terms. What must be valued is the benefit and the risk – the benefit which the settlement has brought to the plaintiff and the further risk which it has created for the plaintiff. These will be matters which the plaintiff will have assessed in negotiating the settlement.

66 These are considerations which might lead to the conclusion that settlement, and even recovery, by a plaintiff in a proportional liability claim ought not to be brought to account in giving judgment against the other concurrent wrongdoers. But I need say nothing further about this for, in the present case, the plaintiff, Ms Lawley, is not shown to have recovered in the aggregate a sum greater than the amount of her loss or damage.

The Sydney Morning Herald and the West Australian cover a case of a Perth man being charged with using a nanny cam to video his female flatmate. 

The story follows a familiar theme, camera trained on area where females will undress and connected to VCR or digital recording device in a remote or adjacent location.  In the workplace it is often sleazy boss setting up pin hole camera in the toilets.  Here it is sleazy flate mate putting camera in bedroom.

It is an offence in all states to use such surveillance devices to record a private activity.  And so there should be.  But why isn’t there an invasion of privacy.  There isn’t any common law right yet.  Why not.  Isn’t there any expectation of privacy?  It is just ridiculous that the law has not made the jump to protect and enforce privacy rights, as is the case in New Zealand, the United Kingdom and the United States. 

I am one of the diminishing band who think Tony Abbott gets a bad rap from the press and the punters.  Distilling last years coverage he was the “Mad Monk” who went off the reservation (to mix metaphors).  I quite like him because he actually thinks about issues and is not afraid to put his views out there.  It would be better if he developed the charm and warmth that John Button had when being candid.  A few less sharp edges would go a long way. But he enjoys that jesuitical aesthetic which journalists see as zealatory. 

Yesterday’s article in the OZ Even the rich need a helping hand (almost certainly not his choice of title – a smart arse sub editor no doubt) is enough to kick him off the stoop where the angels gather and muck about with the rest of the compromisers and rent seekers.  The party professes to get back to basics.  Not a bad thing  after 5 or so years of fiscal drift and compromise.  It then looks a bit odd for one of its senior players not only to support the policy of throwing millions of  non means tested payments to familys and interest groups but to embrace it.  It was one of the worst aspects of the governments pretty ordinary fiscal policy. 

Abbott’s arguments mark him out as an old fashioned Tory of the MacMillan mode or an Eisenhower Republican.  There is no problem that a vat of cash can’t fix.  Abbott’s conservatism has a special glaze, Catholic socialism.  Bob Santamaria must be looking on with pride.  Ugggh!!!!

Some of the justifications for keeping this largesse flowing into the leafy suburbs of our capital cities:

It’s easy enough to rail against benefits, such as a child care rebate or Family Tax Benefit Part B, being paid to millionaires or their spouses. These benefits, though, aren’t income supplements so much as a recognition of the costs associated with being a parent. Of course, low-income working mums deserve greater government support, and receive it, but aren’t all working women entitled to some support with child care? Low-income families deserve greater government support and receive it, but don’t all families deserve some official acknowledgment of the cost of rearing children?

You posed the Quesition Tone so lets answer it.  Government support and policy is not about acknowledging that it costs money to raise a child.  Government provides support when the individuals can’t support themselves.  The phrase safety net comes to mind.  It is not a merit badge wrapped in $100 notes.

The essential test of a welfare system is whether it helps to build a fair society. Taken as a whole, do government payments ensure that no one misses out on the chance of a reasonable life?

Nu uh!  Again that safety net analogy.  If you are rich there is a fair chance that you are going to have a reasonable life.  And……

Government benefits were increased, especially for families with children; taper rates were reduced so that more families benefited; and budget surpluses funded one-off payments for especially needy groups such as carers and pensioners.

One off payments were an electoral fiddle.  What is the benefit of a one off payment?  I mean was there one year where things were hideous as compared to others of wine and roses. 

The question for the critics of so-called middle-class welfare is which specific benefit would they withdraw: the deferred pension plan that encourages people to stay in the workforce; the senior health card that goes to middle income, self-funded retirees; the lower taper rates that reduce low-income earners’ disincentive to work; the mega-surplus bonuses to carers, pensioners and seniors; or the baby bonus that seems to be associated with a significant increase in the fertility rate?

Not surprising but disappointing to see Abbott pull the time worn “pose the question with the impossible answer.”  He invites us to be the grinch.  Hell, I’ll oblige:

• Means test the baby bonus (if you want to have one, which I don’t). 
• remove the health card to middle income self funded retirees. Again, means testing is not a dirty word.
• Mega surpluses are not designed for churning.  Why not put the money towards, I dunno, infrastructure if  you don’t want to have a real change to the tax system.

When conducting its review the Liberal Party should ask the question of every policy with “Why is this Government’s role?”  That should clear the wooly headed thinking that afflicts Abbott at the moment.

French women not only don’t get fat they fade away.   First the book now the law!  France has always been fond of social control legislation.  Strict privacy and defamation laws and laws protecting cultural amenities right down to ensuring irregular verbs stayed a regular part of the lingua franca.

Now another unenforceable law is about to hit the books.  Judges are to enforce laws which ban inducement of excessive thinnes on blogs, websites and ads.  Never a problem I have been inidced to have.  What will be too thin?  Perhaps the honourable beaks will have a body mass index, where anybody a size above Kate Moss is overweight and many end up being obese, when checking out blogs and ads. 

Let the body image police loose.  It has got to be a lot easier than looking parents in the eye and say “So what are you doing you dopey gits” (or the French equivalent). 

The LA Times article is quite detailed but wrong in part.  It says:

In 2006 the international fashion world was shaken by the deaths of two models, one Uruguayan, the other Brazilian. They had literally starved themselves to death, the Uruguayan by living on a diet of lettuce and soda, the Brazilian by eating only apples and tomatoes for three months.
The Uruguayan model died of a heredity heart condition. 

Yet another snub for Freedom of Speech, even if it is stupid. 

It was said that Franklin Delano Roosevelt had a second rate mind but a first rate personality while Richard Nixon had a first rate mind and a second rate personality.  No argument who was the better President and who left the more enduring mark on the nation.  Malcolm Fraser has a second rate mind and a third rate personality.  His latest scribblings in today’s Australian highlight his bankrupt legacy and his penchant for weasle words.  Better that he fessed up and said he got it wrong from the get go.  If he said “Mugabe was bad, I didn’t see it.”  Then he could have said “…and I left a weak legacy as a Prime Minister and left it to the ALP to make the changes that the country desperately needed.” 

His article is a marvel in doublespeak, evasion and assertion.  It does give an insight into the shallowness of his reasoning and his one constant, rising to protect his ever diminishing modest legacy.

 FACT, mythology and vain hope are mixed together in Hal Colebatch’s article about Robert Mugabe. Certainly Mugabe should have gone, and long ago, but Colebatch has a short memory of history.

• As is Fraser’s way he doesn’t identify what he claims is myth and vain hope. 

A veteran Australian diplomat was leading a delegation of observers during the election that Mugabe’s party won.

• And who might that be Malcolm.  Easy to referred to an unnamed source….

He would ask people in the villages about the recent past.

• Which village?  And the old “he would” do this and do that.  Witnesses who say “I would have” and “could have” invite a torrid cross examination.  There is plenty to cross examine Fraser over. 

How difficult had it been? Was there anyone who would help you when you needed it? Would the government people help you? No. What about Bishop Abel Muzorewa; were his people any help? Don’t be foolish. Was there anyone you could turn to for help? The local Mugabe man.

• What homespun drivel which can not be substantiated or tested.  Unnamed diplomats passing on second hand about unnamed persons from an unidentified village.  Really, really credible.

That diplomat predicted a Mugabe victory in an election, largely organised and sponsored by the British and Ian Smith’s regime.

• Again with the eponymous diplomat.  And so what if he predicted victory.  Should anyone have backed Mugabe from the get go.

The diplomat’s questioning gave a simple answer as to why. Any effort to install Muzorewa in power would have involved Margaret Thatcher taking her army out of Northern Ireland and placing it in what became Zimbabwe.

• And his evidence is what?  An assertion backed up by nothing.  Here is a thought.  What about Joshua Nkomo. 

If you are not prepared to impose a solution, which she was not, you have to have a solution the warring parties are prepared to accept. It was that simple argument that led to Thatcher’s change of mind and to her acceptance that there needed to be change in Zimbabwe.

• Again with the “only one alternative.”  What nonsense.  Mugabe came out of the bush with blood on his hands and up to his elbows.

Nothing I say should be taken as condoning any of the excesses of a most terrible regime but, for those who have asked in recent years, I have spoken my mind quite plainly.

• He speaks plainly in two stages.  Says the first 10 years were good and then says it was awful.  The reality was that Mugabe showed his teeth from early on both with Nkomo and dissenters in the countryside.

Years ago there were significant disturbances in Harare. CARE had then, and still has, an office operating in the country. The director of the office rang me to make sure that I did not say anything publicly about the disturbances in Zimbabwe because he feared it would put at risk people working in CARE in remote parts of the country. It was advice I accepted at the time.

• Who in Care said this?  Again with unnamed types.  Gutless writing.  Now Malcolm is suffering in silence for the sake of others.  Yeah right!

Because the past 15 years have been so increasingly bad, people forget that initially Mugabe started reasonably well.

• That is just plain wrong.  Mugabe killed at least 10,000 in the mid 80s, 5 or so years into his tenure.  He sent a North Korean trained brigade into the bush and killed dissenters. 

While his first wife, Sally, a Ghanaian, was alive,

• Here is the rationale Fraser trots out.  Sally was the steadying influence so while she was around the government had the “good” Mugabe (the one Fraser dealt with)

the government was much more moderate.

• Try telling that to the victims of the 80s.

He sat down and discussed reconciliation with Smith.

Given the past relationship between Smith and Mugabe, I doubt if I would have been able to do that.

• Relevance?

When Mugabe was in jail, Sally Mugabe was in England and their only child, a boy aged five or six, was very ill. An English bishop said he would play hostage for Mugabe in jail in what was then Salisbury if Smith would allow Mugabe to visit Sally and give support to her because of the severity of the child’s illness.

Smith’s answer was a blunt no: it was a communist trick, he would have none of it. Soon after, the bishop repeated the offer, but with a difference. He would be hostage for Mugabe in jail if Smith would allow Mugabe to go to England to be with Sally at the boy’s funeral. Smith’s response was as blunt as before: he had already said that it was a communist trick. The fact the child was dead did not alter that.

How many fathers could sit and talk reconciliation with such a man?

• What a diversion.  From this Mugabe is raised up and Smith is demonised.  But it misses the point.  Mugabe was still an autocrat through this time.

It is easy to forget such instances.

• If it isn’t mentioned it is because it is hardly relevant.

It is easy to forget the first eight or 10 years because of the deprivation, the stupidity, the brutality, the injustice, almost the rape of Zimbabwe that has occurred during recent times.

Through my life I recognise sometimes that however much you want to change a person, if they are not changeable then it won’t happen.

There is an inflexibility, a determination that is beyond reach. The Commonwealth tried on one or two occasions, but the architects of those trials were Tony Blair and John Howard. Howard led the mission on Zimbabwe. The Commonwealth showed a grievous error: a white face was not going to work, it was not going to be successful, it was going to open the door to Mugabe’s vitriol. From the outset the Commonwealth should have taken a different tack.

• And Fraser did what at the time.  Very good to snipe at his bete noire Howard (as he does here) but what did he say or write about it.  I bet precious little.

When Olusegun Obasanjo was president of Nigeria, he certainly wanted to act in relation to Mugabe, but anything he did was not going to be successful unless he had the full support of South Africa and Thabo Mbeki. Mbeki was never prepared to give that support and still is not prepared to do what he ought to do.

All the countries of southern Africa suffer greatly because of Zimbabwe. There are three million Zimbabwean refugees in South Africa alone, exacerbating unemployment, housing and poverty, but also setting an extraordinarily bad example in terms of land policy and other policies that make it even harder for South Africa to maintain stability.

No country has more to gain from a well-governed Zimbabwe than South Africa, so why has Mbeki refused to act? Why was he unwilling to support Obasanjo? Together the two would have been supported by almost all the countries of southern Africa in seeking to change Mugabe or getting him to go. Together the two would have been a powerful voice and neither could have been accused of having a colonial history.

No white face has been capable of changing Mugabe for many years, if ever. Why the quality of his Government changed so dramatically after the death of Sally Mugabe is an open question.

• I prefer Fraser when he just dissembles rather than moves in to pop psychology.  It is even worse when he doesn’t even do pop psychology properly.

The central mistake that Colebatch makes is failing to recognise that to keep Muzorewa, would have involved substantial British forces being sent to Zimbabwe, forces Britain did not have.

• What is his evidence for this?  It is an assertion pure and simple based on what he writes.

Ireland was on the boil at the time and no British government would have been prepared to send forces to Zimbabwe anyway.

• And he knows this how? 

Almost certainly it would have prolonged a civil war in Rhodesia that had already claimed more than 25,000 lives.

• Again another assertion and no evidence.

Mugabe was installed as prime minister in Zimbabwe only after a protracted negotiated settlement that was applauded by the entire global community and a democratic process that was universally judged as free and fair.

• He was known to be autocratic and had himself admitted to his communist adherence.  Hell, he calls his cabinet the Politburo. There were purges of the liberation movement in the bush war. 

It is a sad chapter in the history of the human race, but me playing a role and perhaps being instrumental in getting Thatcher to see that there had to be a negotiated solution, as opposed to an imposed solution, was merely recognising the reality of the time.

• Again Fraser doesn’t say why he kept his bib shut.  Oh yes, this Care person who begged, on bended knee, for him not to say anything. For how long was that?  Fraser conveniently keeps that vague.

The quicker Fraser bows out of the public debate, or any debate, the better.  The Liberal Party long ago turned its back on him.  It is about time everyone else did.

Crikey has been copping flak for choosing to publish audio snippets of the extraordinary staff meeting at The Age last week. The Age Independence Committee, and other staff, are not pleased with us.

Here are our reasons for deciding to publish. There is room for disagreement, of course, but we didn’t make the decision lightly.

First, while it was not a public meeting, it was hardly a purely private conversation. Had this been a meeting between a handful of people, then the expectation of privacy would probably have outweighed any public interest considerations. As it was, more than 235 people were there, and they were discussing a matter of considerable public concern – the status and future of journalism at The Age, and independent journalism at Australia’s “quality” newspapers more broadly. The public interest considerations, we thought, outweighed any limited expectation of privacy.

Second, we decided to focus on the words of editor, Andrew Jaspan. All journalists are public figures to some extent, editors in particular. They therefore have a reduced right to privacy in respect of their public roles. All the more so for an editor in chief of a major metropolitan newspaper.

Third, some argued with us that publishing the audio tapes would be counterproductive to the aims of The Age staff, in that it would inflame management. We doubt this is the case. Staff can hardly pass a motion like this without inflaming management, and the publication of the audio can hardly change that much. But in any case, this is not an argument journalists can properly consider. Imagine a leak from the Labor Party in the lead up to the election. Would a journalist be right to not publish because doing so might damage the party’s election prospects? Of course not.

We are journalists too. We have many friends at The Age. Our sympathies are inevitably caught up in these events, but it is our job to try and get the story as completely as we can, rather than to self censor in an attempt to influence the outcome of events.

Finally, if an Age journalist got a newsworthy audio recording of a shareholders meeting, or a union meeting closed to the public, or of the closed part of a political party’s national conference, would they really not use it? We doubt it.

We think this is analogous.

Stop the presses! A judge admits his earlier ex tempore (off the cuff to the occasional lay observer) comments to an application is wrong. Actually that is harsh. Judges and the occasional Magistrate with the wisdom that only quiet reflection can bring do change their minds. And why not. Pleadings and discovery fights can be every bit as complex as a hearing. How his Honour did it is a linguistic work of art: Read the rest of this entry »

Biota v Glaxo will be one of the big court room battles this year. It is in the commercial list though it was issued in May 2004.  That sort of progress is long even by the n Read the rest of this entry »

Malcolm Fraser had a very very late mid life crisis.  He didn’t ditch the wife, tried to hang out at live bands and relive a lost youth or even toke on a joint or three (though his ramblings might suggest otherwise).  His mid life crisis was political.  He went all lefty and suddenly discovered human rights issues, womens issues and developed a Central European anti Americanism that made him the darling of the commentariat.  Now the likes of Phillip Adams can point to Malcolm as proof that not all conservatives are bad.  Malcolm can fill out an invitation list where a token conservative is the done thing.  Fred Chaney, Bruce Baird and Marise Payne have sage company.

I guess you can’t blame the mutt.  He was turfed out in his 50s tried his hand at business (sort of) and didn’t really make a mark.  He wasn’t rich enough to live the life of the rural squatocracy and he wasn’t connected (or liked) enough to get a few comfy directorships and spend his leisure hours at the Melbourne Club.  One option, the Liberal Party, had enough of him.  He showed not much loyalty and when he had the main job ignored party principles and left it to the ALP to put in place all the wide ranging reforms of the early eighties.  The party made its feeling felt when he tried for the presidency of the Party at the 50th anniversary conference in Al bury.  I was there and as Fraser approached the crowds parted.  There was a 10 meter exclusion zone around him.  He pulled out just before the election.  I felt a bit sorry for him being treated like typhoid Mary.  The Party should have looked after him better. 

But on Zimbabwe he should should be put on the stocks for a decade.  He shoe horned Mugabe into power.  Fraser says Mugabe should have quit after the first decade.    Yeah right.  He forgets The Gukurahundi  which involved a massacre of 10,000 – 30,000 Matabeleland and Midlands by a North Korean trained brigade.   Mugabe forced out Nkoma and just applied all the authoritarian tricks he acquired as a maoist in his pre Presidential days.  Mugabe is a progeny of Fraser’s mispent time as a failed world leader.  Mugabe was rotten when in opposition, he started out an authoritarian as President and just graduated to sociopath over time.  That Fraser can give himself an out for his complicity in the sickening mess that is Zimbabwe by saying that Mugabe was good for the first ten years shows him to be a second rate intellect with no moral compass.  He makes me sick!