The High Court’s decision in Spencer v Commonwealth of Australia is a useful consideration of the principles related to summary judgment applications.

FACTS

Mr Peter Spencer has conducted a vigorous campaign in the public arena and through Federal Court litigation against land clearing legislation and the attendant regulations.  A very useful summation is found at the ABC Law Report site.   He commenced proceedings against the Commonwealth in the Federal Court alleging that the restrictions imposed upon land clearing by New South Wales legislation constituted an acquisition of property. Because those laws were enacted in furtherance of an agreement with the Commonwealth such acquisition was made for the purpose of obtaining land other than on just terms and, accordingly, in breach of section 51(xxxi) of the Constitution.  The primary judge dismissed Mr Spencer’s claim pursuant to Rule 31A of the Federal Court Rules, the summary judgment provisions (see pars [10] – [13]).  The Full Court  dismissed Mr Spencer’s appeal (see [14] – [16] for more detailed discussion).

ISSUES

The decision, while unanimous, was considered in separate judgments of French CJ and Gummow, that of Hayne, Crennan, Kiefel and Bell JJ and a short judgment of Heydon J.  Rule 31A provides:

“(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.”

Per Hayne, Crennan, Kiefel and Bell

Their Honours regarded the starting point of any enquiry is, at [52], whether “..there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.”  The no reasonable prospect test differs from earlier rules of procedure relating to summary judgment applications where the exercise was a determination as to whether a proceeding would necessarily fail ([53]) with the test “requiring certain demonstration of the outcome of litigation, not an assessment of the prospect of its success” [54].

Their Honours in posing the question of how the expression “no reasonable prospect” should be understood Read the rest of this entry »

A ray of light comes from the UK on a civil liberties issue.  The Identity Documents Bill 2010 – 11, introduced on 26 May 2010 and read a second time on 9 June 2010, considered by Public Bill Commitee will be returned to the House  for a report by the Committee on 15 September 2010.  The main purpose of this Bill is to abolish identity cards and the National Identity Register; it repeals the Identity Cards Act 2006. Curious that a Conservative Liberal Democrat Governent would overturn such a blight on liberties enacted by a Labor Party. The previous government had so seriously trashed any reputation it did have for protecting rights,with ASBOs and reducing jury trials being just two examples, that it isn’t so curious.

Herein lies a salutory lesson.  Australia came very close to having an ID card, first Read the rest of this entry »

The recent report in the Age that two science fiction stories by Stieg Larsson have been discovered. The Swedish National Library will now decide whether they will be made public.

Retrieval of famous author’s earlier burnt offerings are quite common Read the rest of this entry »

I was initially appalled by the media’s intrusion into Matthew Newton’s admission for in patient treatment for substance abuse.  That is one of those matters where privacy should be afforded.  In UK the House of Lords found it so with Naomi Campbell in Campbell v MGN Limited. The media, especially the tabloid press. were all over it. There are similarities in the cases. Both Read the rest of this entry »

Last Friday there was judgment for Bruce Guthrie in Guthrie v News Limited.  It was a very high profile case, at least in Victoria. It is a long and quite complicated decision.

FACTS

After some negotiations, [5] – [6], News Limited (“News”), engaged Bruce Guthrie (“Guthrie”), as editor in chief of the Herald Sun, commencing 19 February 2007.  From March 2007 differences emerged between Peter Blunden (“Blunden”), the managing director (and previous editor) and Guthrie.  In August and October 2008 there were significant arguments between Guthrie and Blunden. On 11 October 2008 John Hartigan, the chairman and CEO of News, came to the view that the working relations between these two senior executives had irretrievably broken down and decided to terminate Guthrie from his position. He did so on 10 November.  Hartigan sought to keep Guthrie within News, suggesting a position in Sydney.  Guthrie declined stating that he had just purchased a house in Melbourne, was selling his Sydney home and his eldest daughter was doing her final year of school.

ISSUES

Kaye J set out, at [18],  the issues for determination as:

(1) Did the contract of service between the plaintiff and the defendant entitle the defendant to terminate the plaintiff’s employment in November 2008, before the expiration of the three year period of service set by the contract?

(2) If the contract of service did contain a provision entitling the defendant to terminate the plaintiff’s contract of service in November 2008 –

(a) was there an implied term of the contract that the defendant would act in good faith in exercising that power under the contract;

(b) if so, did the defendant breach such obligation of good faith in terminating the plaintiff’s employment with it?

(3) If the defendant breached the contract of service by terminating the plaintiff’s employment in November 2008, is the plaintiff entitled to make a claim for damages, arising from such breach, comprising the loss of opportunity by him, in February 2010, to obtain a renewal of that contract of service?

(4) If the plaintiff is entitled to maintain such a claim for loss and damage, did the plaintiff lose such an opportunity of renewal of his contract of service, by reason of the termination of his employment in November 2008, and, if so, what is the value of that lost chance to the plaintiff?

(5) Alternatively, is the plaintiff entitled to claim the additional payment asserted by him as the alternative basis by which he claims loss and damage?

(6) If the plaintiff is entitled to claim the termination payment, what is the amount of that payment?

DECISION

His Honour undertook  a very detailed analysis of the evidence and counsel’s submissions upon it, [75] – [165].  His Honour’s findings with respect to News’ witnesses were, on material issues, quite negative.

LOSS OF OPPORTUNITY

Kaye J found there were conflicting lines of authority regarding Read the rest of this entry »

In a welcome development the Standing Committee of Attorneys – General have endorsed a model provisions for suppression and non publication orders.

Of particular interest is:

an online register will be established to improve the dissemination of information about suppression orders and provide for the distribution of details on a national scale; and

a register which will be a national ‘first point of contact’ with courts and tribunals providing basic data about whether a suppression order has been made in a particular case and relevant contact information enabling interested parties to make further enquiries.

Richard Ackland has an interesting piece (coincidentally) in today’s SMH on a speech given by David Levine, former New South Wales Supreme Court justice and general doyen of defamation law.

Janet Albrechtson has a reasonble political antena. For that I respect her.  When she steps out and starts talking philosophy she is a red meat eating conservative of fairly unsubtle tone.  Her take on civil liberties is High Tory and sniffy at individual rights. So I was on red alert when I read the banner headline South Park gag makes a mockery of freedom of expression. I was expecting an attack on free speech for the sake of western values etc… Don’t join the bad guys… The liberal self loathing intellectuals blah blah..

But the banner is total nonsense.  It has nothing Read the rest of this entry »

It is difficult to overestimate the impact of Orwell on satire.  Animal Farm and Nineteen Eighty Four are clear,unequivocal and beautifully written clarion calls against totalitarianism.  If one was to read only two authors to gain an appreciation of how to write clear prose those individuals would be Ernest Hemingway and George Orwell.  Their prose is sparse and direct.  Their words dance on the page. Unlike the overblown sludge that is pushed through the processor.  I have additional respect for Orwell because Read the rest of this entry »