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 »

Today is the centenary of the death of Samuel Langhorne Clemens – the incomparable Mark Twain.  There are so many sites devoted to him, his quotes and travels that I can’t possibly do justice to him.

Along with George Orwell and Ernest Hemingway he is my literary hero.  A master of the written word and no respecter of tradition.  That is as high a praise as I can give anyone.

Huckleberry Finn is the quintessential perfect American novel.  When I read it in Year 10 I knew I was experiencing something special.  I have returned to it every couple of years and get something new every time.  Next to Hemingway at his best it is the most effective prose I have read.

Where Mark Twain soars is his ability to skewer the pompous and satirises the rest.  In this time of over earnest chest beating, political correctness in its current guise and bleating about morals and standards we are desperately in need of another Twain.

Vale Mark Twain.

Something is definitely off in Lower Merion school district.  It is located in Philidelphia, Pennsylvania, United States of America.  Some genius(s) in the school system installed peeping tom technology on students’ lap tops which then took more than 56,000 images of students using the lap tops at school and home.  The Guardian has run  story on today.  As usual the dopes who purpertrated this gross invasion of privacy picked a bizarely inappropriate response to deal with a mundane problem, lap tops going missing. Putting aside whether that was a smart way of dealing with the problem the program was activated on lap tops which were not stolen, missing or otherwise being used in an inappropriate manner.

It gets better.  The officials outed themselves when one confronted a student about supposed drugs he had in his bedroom.  Turns out the drugs were sweets.  The obvious querry is “How do you know what is in my room>”  Next port of call, a lawsuit.  In the Australian context the Listening Devices Act is the only real option however I think there would be scope to rely on nuisance or trespass coupled with a breach of confidence in Giller v Proscepets.  It might be a stretch but the law is developing.  All the more reason to have a proper statutory breach of privacy cause of action.

Two decisions of the Supreme Court last week, provide a very detailed and useful analysis regarding applications to set aside a subpoena and a summonses.  In Burchell & Anor v Hill & Ors a non party sought to set aside a subpoena issued under Rule 42A.01.    In Re Bill Express Limited (in liq) , the applicant, appealing from a decision of Gardiner AsJ,  sought to set aside a liquidator’s summons for production.

Burchell & Anor v Hill & Ors

Facts

The plaintiff issued a subpoena to the National Australia Bank Limited, a non party. The NAB objected to Read the rest of this entry »

For privacy practitioners the problem with transferring data overseas is a real cause for concern. In the Daily Mail’s NHS sends confidential patients’ records to India despite pledges it would not.  The obvious problem is the lax privacy controls in India and the variable conduct of Indian companies.   The purpose for the export is to transcribe notes.  The real problem is matching files to identifiers.  The claims that the firms in India comply with current data protection has a hollow ring to it.  Unless you can enforce the laws of the land there is no point claiming there has been compliance.

In Blackman & Ors v Gant & Anor Vickery J considered a very interesting no case application by the Second Defendant.  This is a case that has drawn considerable press coverage, including in the Australian and the Age.

FACTS (pars 4 – 11)

The Plaintiffs are the artist Charles Blackman and his trustee, Robert Dickerson.  The Second Defendant is Peter Gant, an art dealer.  Gant originally supplied three works of art to a Helen Stewart , another art dealer, together with two valuations of the works.  She was the former First Defendant.  Stewart sold the works to a a Robert Blanche, giving him a copy of the valuations.  The evidence is that Blanche relied upon one of the valuations when purchasing the works and used the other for insurance valuation purposes.  When, later, Blanche was advised that the works were not authentic he returned them to Stewart who refunded his money.  Stewart then returned the works to Gant.   The Second Defendant maintains the works are authentic.  The issue before Vickery J was confined to the Second Defendant’s no case application.

ANALYSIS

The Plaintiffs claim, at [12], that the valuations impliedly represent that the works were authentic and consequently a breach of Read the rest of this entry »

It is a regular feature of the Simpsons to have the good burghers of Springfield transform into a mob is baying for a knee jerk reaction to a complex moral/social issue.  At the moment of truth, when the situation takes its crazy course to high farce, Helen Lovejoy, appears centre stage, panicking and screaming “Will someone please think of the children!” It is wickedly clever satire because the problem, whatever it is, has nothing to do with children or their morals.  Screaming public morals is no new trick Read the rest of this entry »

In a wide ranging and detailed judgment in Equuscorp Pty Ltd & Anor v Acehand Pty Ltd & Ors Hollingworth J considered Anshun principles and abuse of process in the context of an application to amend.

FACTS

The facts are unusual.  The plaintiff, Equuscorp, commenced proceedings against hundreds of defendants who were investors in forestry schemes which collapsed.  Equuscorp was the lessor of properties upon which the forests were located and the defendants were lessees.  Equuscorp sued each defendant individually however it was agreed through case management that there would be a trial against two defendants.  They were not test cases, but clearly their outcome would have an impact on the others.  At trial Equuscorp lost with the court finding that the leases were void for uncertainty and were unenforceable because they contravened the NSW Local Government Act (the land was located in NSW).  An appeal to the Court of Appeal failed.

Later Equuscorp’s solicitors informed a group of the defendants (known as the Mills Oakley Defendants) that they would be amending their statements of claim against the remaining defendants to plead:

1. the agreements in question were not leases but rather licences;
2. a claim of unjust enrichment.

The Mills Oakley Defendants contended that the amendment was an abuse of process, the outcome of the previous trial constituted an Anshun estoppel, the proposed claim was unarguable and they would suffer prejudice not compensible by an order for costs [13].  Daley AsJ dismissed the application to amend.

ANALYSIS

Amendment generally

Aon Risk Services Australia Limited v ANU now dominates decision making on amendment applications.  Hollingworth J considered it in detail providing a very useful synopsis of the guiding principles.  She recounted, at [19] the relevant factors in exercising the discretion to permit amendment are:

(a) The nature and importance of the amendment to the party Read the rest of this entry »

A busy sub set of defamation proceedings isactions involving members of association. In Perry v McIntosh & Ors Kaye J, Justice de jour on matters defamatory, considered an application regarding the adequacy of particulars and an attempt to strike out imputations.

FACTS

The plaintiff and all six defendants were members of the Mustang Owners Club. All bar one defendant were members of the committee with the plaintiff being the treasurer.  It is alleged that after presenting a report to approximately 70 members the President said:

“Does the report which I read out to the meeting from the minutes of the previous meeting make any sense?…I had difficulty following it and the committee had to put up with this treasurer’s rubbish every month.”(“The sixth defendant’s words”). (see [4])

It is also alleged that while the plaintiff was giving his report the defendants interjected with the words “you’re a liar” [5].

PLEADINGS

Regarding the “liar” allegations the Plaintiff alleges the ordinary and natural meaning of those words were that:

(1) The plaintiff was a liar; and

(2) The plaintiff was not a fit and proper person to hold office in the club as Treasurer or otherwise. (see [7])

Regarding the “rubbish” allegatons the Plaintiff alleges the ordinary and natural meaning of those words were that:

“a. The plaintiff was an incompetent treasurer of the club;

b. The plaintiff produced Treasurer’s reports which were inaccurate, worthless and nonsensical;

c. The plaintiff’s methodology for creating financial reports for the committee and the members were so lacking in form and substance that his reports were rubbish;

d. The plaintiff as treasurer prepared his reports for the Club in such manner that the committee and members could make no sense of the same.” (see [21])

THE ARGUMENT

The Liar issue

The Defendant argued that there were inadequate particulars.  The Defendants argued Read the rest of this entry »

Peter Van Onselen writes well…. on subjects of which he knows something about.  Mainly the ins and of political strategy and tactics.  He isn’t bad at analysing political personalities.  Political theory and history is, however, a real walk on the wild side for him.  There is no stronger example than his mighty attempt at justifying the Abbot parental leave scheme as being consistent with Liberal/conservative/utilitarian philosphy in Abbott’s scheme is perfectly Liberal.

Van Onsolen uses Liberal touchstones to bolster his case – Menzies and the Forgotten People speech.  The former is a Liberal deity, the latter part of the sacred texts of the Party.  Nice touch.  But intellectually sloppy.

First as to Menzies.  The name is not a term and, even if it were, the term is not a philosophy.  As to the Forgotten People speech, it was a good, even great speech used by Menzies just after the United Australia Party collapsed and the Curtin became Prime Minister.  Menzies, the consummate politician, used to as an early step to give form to a new party and in it he identified the natural constituency, the middle class.  It was not an Australian take of “On Liberty”.  He wasn’t trying to out Burke Edmund Burke.  It was an opening stanza in a concert that ended in a conference in Albury where the Liberal Party was formed.

Quoting from the sacred text is just intellectually dishonest.  He says:

The notion that Liberals aren’t supposed to embrace big-picture ideas that promote social policy improvements ignores the words of Menzies when he pointed out that most Australians “see in their children their greatest contribution to the immortality of their race. The home is the foundation of sanity and sobriety; it is the indispensable condition of continuity; its health determines the health of society as a whole.”

Nearly 70 years on, that sounds like a good reason to back a generous parental leave scheme.

What complete and utter twaddle. It presupposes Read the rest of this entry »