Peter A Clarke

We all have moving moments in our childhood when we stumble upon a beautiful image or wonderful prose, so magnificent to our young eyes that we feel we can move mountains and want to change the world to meet that image. One of those moments for me was reading the “Yes Virginia” editorial. It captured what clear, pure prose should be with a wonderful imagery. It is described as one of the most famous editorials ever written. A big call. But in the cynical issues driven world of OP ED and editorial writing it stands out. What also inspired me was that a big city newspaper was prepared to take the innocent inquiry of a young child to heart and respond.  Sure there was probably an alterior motive, it made everyone look good.  But it didn’t have to be done.

Now that I have a blog I can go all misty from time to time. And Christmas day is the time to do it. Here it is:

We take pleasure in answering thus prominently the communication below, expressing at the same time our great gratification that its faithful author is numbered among the friends of The Sun:

Dear Editor—

I am 8 years old. Some of my little friends say there is no Santa Claus. Papa says, “If you see it in The Sun, it’s so.” Please tell me the truth, is there a Santa Claus?

Virginia O’Hanlon

Virginia, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men’s or children’s, are little. In this great universe of ours, man is a mere insect, an ant, in his intellect as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus! It would be as dreary as if there were no Virginias. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in Santa Claus! You might as well not believe in fairies. You might get your papa to hire men to watch in all the chimneys on Christmas eve to catch Santa Claus, but even if you did not see Santa Claus coming down, what would that prove? Nobody sees Santa Claus, but that is no sign that there is no Santa Claus. The most real things in the world are those that neither children nor men can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived could tear apart. Only faith, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! he lives and lives forever. A thousand years from now, Virginia, nay 10 times 10,000 years from now, he will continue to make glad the heart of childhood.

It is written in in the 19th century style, it was written in 1897, so appears a little stilted to our eyes. I love that slight formality. It remembers a time when people love working language for its own sake, for the cadence and rhythm. For more information about this wonderful story and the author of the piece have a look here.

A Merry Christmas to all who read this. May you have a happy and holy festive season!

One of those year end stories from Times on Line. Usually they run to best/worst films, whose hot/not or something like that.  Not often do you get The weirdest legal cases of 2008. A good idea for the Legal section of the Australian or the Australian Financial Review.  The problem is that the Australian hates lawyers so much they couldn’t summon the wit to poke gentle fun.  Way too much into weilding a scimitar.  And the AFR is just plain stuffy.

The Opes Prime collapse is the gift that keeps on giving, litigation and judicial decision wise at least.  Finkelstein J, the judge assigned to the proceeding, has handed down a number of decisions involving the initial insolvency and now the class action. Given the “no quarter” approach that seems to be taken by the parties at this early interlocutory stage more decisions are likely in the future, well before trial.  This decision arose out of an application by the respondents to strike out the statement of claim or summarily dismiss the proceeding. Finkelstein J took the opportunity to review the general principles.

Strike out application (paragraphs 4 – 5,  8 & 10).

Features of a strike out application are: Read the rest of this entry »

In this decision Justice Buchanan did not award the successful party its full costs.  Costs are always discretionary however the ordinary rule, absent issues of offers of compromise and Calderbank letters, is that costs follow the event.  In this short but comprehensive decision he explains the circumstances justifying when to depart from the ordinary rule.  The decision is significant because it collects and summarises the key principles. 

At paragraph 11 Buchanan summarised the three key principles Read the rest of this entry »

Sir Elton John is not famous for his sense of humour. There is a steady stream of you tube videos evidencing that. Little wonder that he commenced proceedings against the Guardian Newspaper. His claim has hit an early bump in the litigation road. Guardian had significant success in striking out Sir Elton’s claim. Guardian pleaded fair comment. It is a useful decision dealing with an application to strike out imputations.

The article

The article in a weekend piece was: Read the rest of this entry »

Attorney General McClelland has cloaked himself in deep symbolism, the 60th anniversay of the Universal Declaration of Human Rights by launching the National Human Rights Consultation, whatever that means.  The press release is a marvel of good feeldom: Read the rest of this entry »

The Age’s piece SBS Swift action at Kovcos’ complaint is another disturbing drift to censoring anything that pokes fun at our modern day Sacred Cows.  And the the ADF seems to be the top heifer in that paddock.  Twenty years ago the ADF and Army Reserve were having a hard time getting a recruiting table at a University and thirty years ago the looney left wanted to ban the ANZAC day parade.  And anyone who has seen One day of the Year by Seymour will realise that when the baby boomers were in full throat the army was seen as a national curse not the current blessing. I think the army is a proud institution that deserves respect.  But not subservience.

Swift and Shift Couriers is biting, often crass, but more often witty and slightly scatalogical humour which aims to offend and amuse in equal measure.  SBS knew what it was getting into.  Swift is not much different than Pizza, by the same producers, and that program went down then up a list of ethnic groups to offend and other groups to poke and prod.  Not everyone’s taste but part of the panoply of humour that should be available to all. 

Last Monday’s episode contained a very thinly veiled parody of the farce that was the recovery of Kovko’s (the character being “David Cobbgrove”) body Read the rest of this entry »

It is quite common for an appellant to seek a stay of execution of a judgment pending resolution of an appeal.  It is surprising that many litigants ( and, I suspect, their legal representatives) believe that lodging an appeal constitutes a stay of execution and then the presumption is in favour of such a stay.  The contrary is the case. Read the rest of this entry »