Peter A Clarke

Abraham Lincoln had good advice about writing a letter when angry. Write the letter, you will have a good time getting your feelings onto paper and feel the better for it. Leave it overnight. Return the next day, burn the letter and writer another. Good advice , bad for defamation lawyers. It should be mandatory for lawyers who put pen to paper in anger.

There can be a fine line between being forthright and acting without fear or favour on behalf of one’s client and being offensive, provocative or, the using the catch all phrase, bringing the profession into disrepute. The Full Bench of the ACT Supreme Court considered this question in DAVID LANDER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY, The court reviewed a decision of the Legal Practitioners Disciplinary Tribunal that David Lander, had by statements made in a letter to the Chief Executive of the ACT Department of Education and Training was guilty of unsatisfactory professional conduct.

The letter (republished in full at par 4) leaves very little need for explanation. The following extracts demonstrate why it prompted a complaint Read the rest of this entry »

In Sopov & Ors v Kane Constructions Pty Ltd the Court of Appeal again traverses the well worn path of applications for stay of execution. The applicants sought a stay of a Court of Appeal decision pending a special leave application to the High Court. I most recently analysed the approach to stays by the Court of Appeal in my post on Gangemi v Osborne.

In this proceeding the applicants/appellants sought to distinguish a stay application to the High Court from other stay applications, submitting that the former did not require special or exceptional circumstances (par 45). The other bases for the application, which constituted exceptional circumstances were:

• the applicants did not have the resources to pay the judgment debt and their accountant said they would face bankruptcy if the orders were enforced. This meant they could not prosecute their appeal (par 45);
• there was a substantial prospect that special leave would be granted (par 46);and
• the respondents had already received substantial monies (par 46)

At paragraphs 52 & 53 their Honours restated the well settled proposition that the principles applying to stays pending a High Court special leave applications do not differ from other stay applications, stating: Read the rest of this entry »

Prolonged delay between issue and hearing on a damages/liquidated sum claim often means a significant interest component in a final award for a successful plaintiff. That can be the subject of a significant argument and separate determination, as the Court of Appeal did in Giller v Procopets (No 2) [2009] VSCA 72 and, a case I was and remain involved in, Walker & Anor v Hamm & Ors (No 2) [2009] VSC 290. Both decisions carefully and clearly set out the applicable principles associated with the award of interest and when delay or other factors justify adjusting the period of time over which interest should be calculated and/or varying the rate.

In Kalenik v Apostolidis & Ors (No 2) Hargrave J again considered those principle. The default position is

“..interest ‘must’ be ordered for the whole of the period after the issue of the writ unless ‘good cause Read the rest of this entry »

The Victorian Law Reform Commission is currently considering submissions into its discussion paper on surveillance in public places.  The Federal Government has the ALRC report on Privacy.  How far both will go in forcing change is in the lap of the Gods.  I am not hugely optimistic.  New rights are not something governments tend to prefer, particularly in the face of media opposition.  And both reports prefer a statutory right of privacy.  The need is there.  If the Governments fluff around the common law will have to develop further than the principles in Giller v Procopets.  It is an issue that is High Court bound sooner or later (unless Governments do the sensible but unexpected). 

But the need is there.  Today’s Age piece The eye in the sky is a pretty good anlaysis of the issues.  It does make the point that while Melbourne/Australia has been less enthusiastic about CCTV than the insanity that exists in London the mood may be changing.  When our Lord Mayor does everything but actually instal new CCTVs you know the mood is on for a law and order push with CCTV being the latest panacea.  Bettert to go the route of statutory protections and regulations than have to have the common law step in. 

On other matters Privacy finally Facebook is being brought into line on its privacy and data collection policies courtesy of the Canadian Privacy Commissioner, see Facebook to tighten user privacy protection after Canada talks.  About time. 

One of the predictable pieces a paper produces at least once in every election cycle is the lack of talent in politics and how to get the best and brightest into the field.  And If you pay peanuts… fits the bill perfectly.  The hook upon which this story is based is the latest round of preselections in the State scene. 

The article is right in demonstrating the political renewal is not a given.  Politicians hold onto their seats as long as is possible.  Phillip Ruddock wants to hold on even though there is virtually no prospect of him ever sitting on the front bench again let alone being a Minister.  He loves the buzz.  Wilson Tuckey likewise.  Bronwyn Bishop.. and the list goes on.  Same, if not worse, in the State sphere.

The issues of money, lack of privacy and the lack of status that goes with being a politician are posited as reasons why people of calibre don’t go into public life.  Maybe but it was always thus.  In times gone past the attacks on a politician were more raw and the risks greater.  You have to have an itch to get into politics.  You don’t do it for the money.  The real problem is political atrophy within the parties and across the parties.  With a dwindling membership base party hacks have an inside running.  Factions in the ALP and intensive cultivation within the conservative ranks makes it very hard for a relative newcomer to find a place in a party and make a run. 

But things change. The American system is full of crusty old operators, much like the late Edward Kenneday who almost served 5 decades in the Senate.  But every so often there is a major electoral shock and like a spring rain the fluff is washed away.  It is harder to do these days but all is not lost.

Today’s piece in the Age, Screening the same old dreary story is spot on.  Michael Coulter is spot on.  He says his faith in Australian movies broke in 2004.  My faith was shredded well before then though I have saluted the occasional diamond, such as The Boys, Chopper and some excellent TV product.  But there is so much dross.  Even the supposed brilliant movies such as Lantana are disappointing.  Bleak doesn’t even begin to describe it. 

Unfortunately Coulter’s is a story run fairly often.  But it makes no difference.  Apart from his hypothesis, that an industry that lives of government funding need not worry about returns, there is another explanation.  The industry produces for its members and they love bleak super realistic product that fills the program at Film Festivals.  It frightens me to see the mass of autuers at the Melbourne Film Festival who spend their time rhapsodising over dreary, bleak, overwrought and generally appalling product.  Conversely they sneer at anything that is even vaguely commercial or aimed at a wider market.  What they miss is that the wider public have a yen for a good story well told.  Australian movies are poorly made stories badly told.  As Coulter notes, most of these efforts lack characters with whom the audience can empathise.  And like Coulter I can spend my dosh on stories that do engage you.  Or I can get a DVD of  a classic. 

It seems nothing will change.

Today’s Sydney Morning Herald is doing the meltdown thing about a plaintiff, Liskula Gentile Cohen,  successfully forcing Google to provide identifiers of a blogger.  The ruling enables  Cohen to  identity the blogger that described her as a skank and an old hag.  Actually the blogger said:

“I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen,” the anonymous blogger wrote.

“How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.”

Very blogspeak.  Cohen is planning on suing.  In the Australian context there would be some interesting pleading challenges if one was to run a justification defence.  But the US laws are far more difficult for the plaintiff, particularly if Cohen is regarded as a public figure.  Cohen has apparently already made contact with the blogger by phone.  They know each other.

The Times on line (UK) has run a similar theme to the Australian Press reports with  Vogue model Liskula Cohen wins right to unmask offensive blogger, but it should know better.  It identified Richard Horton, the Night Jack blogger, months ago and fended off his attempt to maintain anonymity publish his details prompting a breathless analysis in June under the banner Analysis: bloggers can no longer be sure on anonymity,  The decision, by Mr Justice Eady, of The Author of a Blog v Times Newspapers Limited refusing an injunction to protect a blogger’s anonymity is hardly ground-breaking law.

There has never been a separate stand alone right to unmask/identify a blogger.

The interlocutory decision of the Manhattan Supreme Court sets no precedent.  The case involves long established principles Read the rest of this entry »

Colin Rubinstein was a pleasant enough fellow when I knew him back in my Monash days. He was an academic in the Politics Department ( I think).  A man of very strong views but, in the main,  quite logical.  His latest offerings to the Age, Terrorist television would violate our racial hatred laws,is anything but.  His views are still strongly held.  Maybe a bit too strongly.

A piece of clear thinking it is not. It is worth a close look see:

A Hezbollah-run Arabic station could soon be broadcasting in Australia.

IMAGINE for a moment that Abu Bakr Bashir ordered his Jemaah Islamiah followers to start a satellite television station, perhaps called JI-TV.

But it hasn’t.   Read the rest of this entry »

Politics is as tough a gig as they come.  At the pointiest end, parliamentary politics, it can feel like a sitting in a blast furnace while having the weights dropped on you.  And I only know that from being a research officer/speech writer many years ago.  A hard day in court can be stressful.  With a grumpy judge or a case going to hell the adrenalin output must be equivalent to our ancestors reaction when first seeing the lion/sabertooth tiger up close and personal.  But usually the stress in court is anticipated and there is a conclusion to the terror.  Not so in politics.

How Turnbull could have emerged from this trainwreck?  Let’s look at it through the eyes of a lawyer.  After all he was a barrister for a while. Read the rest of this entry »

The Law Lords are no more.  On 30 July 2009 the judicial work of the House of Lords ended.  And next Monday their Lordships find themselves as members of the United Kingdom Supreme Court.  Probably for the better though I thoroughly enjoy harmless anachronisms.  And there was something delightful in watching a Law Lord deliver his judgment as a speech from the benches of the House of Lords.  It was so informal and conversational.  It reminded me of what a wise colleague once said about the how the further up the legal tree the less the formality and stuffiness.  I think that is because the truly bright and competent don’t have the need to cloak any  insecurities in pomp, ceremony and unnecessary formality.  Some of the nonsense that some (and thankfully not many) Magistrates go on about on forms and process is enough to make a cat smile. 

Back to the House of Lords.  They went out with a bang not a whimper.  Seven judgements all in. And here they are:

The most contentious is the last in the list. 

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