Peter A Clarke

Defamation litigation is prone to interlocutory stoushes. Statements of Claim are regularly amended with imputations polished and expanded as time goes on. On the defence side there are fights over the statement of claim and pleading the various defences. Given the cap that now applies to Defamation cases these interlocutory stoushes are probably going to make defamation matters even less likely to run. That is a bit of a pity given I like practising in this area. Working with language, arguing what words mean is fascinating.

Dyson Hore Lacy and Phil Cleary are in a grinding piece of litigation. It has been hard fought so far with applications to the Practice Court and onto the Court of Appeal. If this case goes to jury it will be spectacular.  Justice Kaye had to adjudicate an application by the defendants to amend their defence to plead fair comment. Bringing interlocutory applications on the pleadings are more important in defamation actions than most other civil claims.

Kaye J writes well. He wields a Mont Blanc with precision. It is far from lyrical prose but it is very clear. His decision is a very useful analysis on fair comment.  Read the rest of this entry »

When is a self executing order not a self executing order.  When a court is loathed to stop someone having their day……. eventually.  A court will bend over even further when the malefactor is self represented. 

Things don’t auger well when a judgment starts:

1 The appellant, Alan Jorgensen, is a serial defaulter. That is to say, he has been persistently dilatory in taking steps in his appeal.[1] His notice of appeal was lodged in January 2006. More than two years later, there is no agreement on the contents of the appeal book.

Read the rest of this entry »

Everyone has a right to appear in a court in his or her own case.  Things don’t get any more fundamental than that.  But facing off against a self represented litigant fighting over an “injustice” meted out eons before is the type of case that sends a chill through even the most battle scarred barrister.  The alarm bells ring loud and long and the fight is almost always hard.  Judges bend over backward to give the punter a fair go and counsel are often kept on a tight leash in the objections they make, how hard they can press points and the vigor of their cross examination.

Rana is in many ways the run of the mill litigant in person case where the applicant claims injustice by the Commonwealth in the method of his discharge from the Australian Army.   It is a useful decision for setting out the relevant legal principles including: Read the rest of this entry »

This is an interesting case dealing with trespass to land and teh power of the police to enter private premises.  One of the core and basic rights any occupier has is to enjoy quiet enjoyment.  That right extends to requesting someone leave, even if police, and a failure to do so resulting in a trespass to land.  In this case the tension was the rights the police had to enter and remain where they believed there was a breach of the peace.  The High Court in a 4 – 1 decision upheld an appeal by a plaintiff who claimed the police trespassed his land and ,  that those common law rights prevail.   Read the rest of this entry »