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 »

Making an application to re instate a proceeding which was struck out because of non compliance with court orders is often a grinding experience.  Such applications are generally made in the teeth of vigorous opposition notwithstanding the reluctance of courts to shut out litigants.  The issue in Re Saeco Australia Pty Ltd was whether leave was required on an appeal from the Associate Justice under Rule24.06 and the exercise of discretion.

FACTS

On 11 November 2008, Efthim AsJ dismissed theproceeding on the application of the first defendant (“SIG”) pursuant r 24.02 because of the failure of the plaintiffs to comply with orders of the Court for the discovery of documents.  On 2 December 2009 Efthim AsJ set aside order for dismissal on the plaintiffs’ application made pursuant to r 24.06.   SIG appealed the order made under r 24.06.

Leave required

The Plaintiff argued that SIG needed leave to appeal because the proceedings was under Read the rest of this entry »

The National Human Rights Consultation was a deeply flawed process.  Frank Brennan took the Committee around Australia and got plenty of air time.  But the process was so predictable.  The GetUP crew and pro charter people organised mass mail ins giving the impression that there was huge support for a Charter of Rights. But it was so obvious that it lost impact.  Their excitement  about the effectiveness of the Charter model surprised me.  It is an anaemic and ineffective model. On the other side the shrill and hysterical write ups by the Australian and burnt offerings by conservative columnists tended to the apocalyptic.  The obsession about “unelected judges” subverting the Parliament became embarrassing, especially when falling from the pen of lawyers.  Did the concept of the common law escape their attention.  And did they avert their eyes from the somehow miraculous operation of the judiciary in the American context.

The Federal Attorney General’s response to the Brennan Report is as insipid as the process.  No Charter of Rights, no bill of rights but an Australian Human Rights Framework.  Sounds good.  But less impressive in practice.  It is, in the AG’s words: Read the rest of this entry »