Peter A Clarke

Yesterday Smith J handed down final orders in the Walker & Anor v Hamm & Ors (No 2) [2009] VSC 290.   The final outcome is, on my research, a record in Victoria (and probably in Australia) for an award for a police tort (assault by the coppers). The final awards are:

Conclusion

158 To sum up, I have come to the conclusion that aggravated damages should be awarded to Donald Walker in the sum of $200,000. He should also receive $400,000 by way of exemplary damages. Marcus Walker should be awarded aggravated damages of $75,000. The estate should be awarded aggravated damages of $100,000.

159 In relation to interest, interest on general damages should be awarded as follows:

• Donald Walker $63,000
• Marcus Walker $42,000
• Marcia Walker’s Estate $21,000

Interest should be awarded on their damages for economic loss to Donald and Marcus Walker as follows:

• Donald Walker $310,843 and $98.63 per day from 18 May 2009
• Marcus Walker $128,492 and $54 per day from 18 May 2009

160 As to costs, the defendants should be ordered to pay the plaintiffs’ costs in each proceeding on an indemnity basis.

Ron Meldrum QC acted for the plaintiffs.  I was his junior and will be at the appeal.

The Herald Sun gave the case a front page splash today with a very tough editorial. 

The defendants have indicated that this case will go on appeal.  C’est la vie.

Just to show that some with a badge and some authority just don’t get it there is an article in today’s Herald Sun Connex staff allegedly put woman in headlock at station.   

Today’s report from the Guardian Newspaper on line Murdoch papers paid £1m to gag phone-hacking  that News of the World had hacked into phones of celebrities and taped their conversations.  In a related article Trail of hacking and deceit under nose of Tory PR chief said:

Among those whose privacy apparently was illegally violated when British Telecom was conned into handing over their addresses and/or ex-directory numbers are Nigella Lawson (four times); Patsy Kensit; Jude Law and Sadie Frost; Lisa Snowdon (three times); Anne Robinson and her former partner; Carol Caplin; Lenny Henry; Vanessa Feltz; Lord Mountbatten’s grandson; and witnesses to the murder of Jill Dando, thus potentially interfering with the course of a live police inquiry.

Why the British Police didn’t tell the people whose privacy has been compromised is beyond me.  Their rights have been infringed.  It is not enough for the police to prosecute the offences.  If they know a person’s property has been trespassed upon they would notify the owner.  Simple as that.  Why the mystery of phones or computers? 

In the Australian/Victorian context there is probably a breach of the Telecommunications Act for obtaining the phone details illegally and for hacking into the phones and a breach of the state Listening Devices Act for taping the conversations. 

But none of that gives the persons whose privacy was breached any great comfort.  It is their rights that have been violated.  Under Gillers v Procopets there is a reasonable chance of being successful though it might be hard to show there there was an intention to cause distress or humiliation or whether there was humiliation.  Frankly a breach of privacy like this should be actionable per se.  That is damage should be presumed.  Hacking into private communications is like rummaging around somebodies personal effects on their property.  The difference is that physically going onto one’s property without consent or licence and rifling through one’s things is trespass and actionable per se.  But breaching the privacy of another is not.  The law needs to develop with the times. 

Under the proposed the ALRC recommendation for the statutory right of privacy the test is:

Recommendation 74–1 < ?xml:namespace prefix ="" o ns ="" "urn:schemas-microsoft-com:office:office" />

Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non- exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where:

(a) there has been an interference with an individual’s home or family life;

(b) an individual has been subjected to unauthorised surveillance;

(c) an  individual’s  correspondence  or  private  written,  oral  or  electronic communication has been interfered with, misused or disclosed; or

(d) sensitive facts relating to an individual’s private life have been disclosed.

Recommendation 74–2

Federal  legislation  should  provide  that,  for  the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances:

(a) there is a reasonable expectation of privacy; and

(b) the  act  or  conduct  complained  of  is  highly  offensive  to  a  reasonable person of ordinary sensibilities.

In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

If these breaches happened in Australia and there was a statutory right, I think there would be a good chance of success.  The issue would be whether there was disclosure of sensitive facts.  In defamation publication only needs to be to a third party.  Given the egregiuos nature of this breach it wouldn’t be a brave submission to say disclosure within the Murdoch would probably be enough,  If it was disclosed to the general public the argument would be unassailable. 

Interesting days indeed.  Now will the Federal Government do the right thing and enact a statutory right while batting away the shrill complaints of the Murdoch Press. 

Doug McClelland is one of the better Federal Attorney General’s of late.  He is experienced in the black arts of politics and  knows his way around the corridors of power (unlike Darryl Williams) and doesn’t see his role to be an attack dog for the government (ie he is not Ruddock lite).  Unlike his state counterparts he doesn’t bang the law and order drum until the skin breaks (Hatzistigos in NSW) or become an affirmative action zealot (Hulls) though he seems to be gently nods in that general direction.  All in all he is working quietly and smoothly through his portfolio pushing through reforms to the courts and procedures.  How well they work out is a matter for time to tell. 

So it is all the more disappointing to read about the Lexicon of Terrorism project in today’s email. 

Attorney-General, Robert McClelland, today welcomed the national roll-out of a project to

promote the consistent use of language in engaging with communities on national security

issues.

While we are working on lexicon:

•  “roll – out” means spending a lot of government money ; Read the rest of this entry »

When I read the quite slashing piece in today’s Australian Christopher Pyne is member for whatever it takes I was struck by the description of Christopher Pyne as a former lawyer. Given he was elected to the Federal Parliament when 25 years of age I wondered what he did to earn that moniker.  With the standard 5 years course he must have got his degree,  finished his articles and  rushed off to be sworn in as the member for Sturt a couple of hours after being admitted to practice.  Perhaps a rhetorical flourish but it makes the point.  Having a law degree does not a lawyer make.  Read the rest of this entry »

It is a fair bet that there will be a few more entries onto the austlii site in the Australian Football League v Stadium Operations a dispute between the AFL and the owners of Etihad Stadium about use of the stadium, naming rights etc. The opening round, in court at least, was the  decision by Warren CJ regarding a preliminary discovery application.  The AFL was generally successful.

Preliminary discovery is a potent but poorly understood process.  There seems to be a reflexive reluctance to make the application.  Warren CJ has provided a good encapsulation of the main principles. The starting point for her analysis is Read the rest of this entry »

Justice Beach continues to set a cracking pace in the judgment reaching and decision writing stakes with his, now typically, clearly written decision in C-Tech Laser Pty Ltd & Anor v Truong [2009] VSC 229 (15 June 2009) , and appeal from the Magistrates Court. Beach J together with the other recent appointments Judd, Vickery and Davies produce clear, concise and decisive judgments, much like Gordon J of the Federal Court.

In C-Tech Beach J considers the elements in a malicious falsehood claim. Malicious falsehood (also known as injurious falsehood) is not often pleaded. There was often no good reason to plead it because the facts generally supported a claim in defamation. The advantage of relying upon defamation was that it is actionable per se; with damages being at large. Further there is not need to prove malice in defamation. The reforms to Defamation with the Defamation Act 2005 means that, under section 9, most corporations are precluded from suing in defamation. With the amendment to the defamation law (in the main a great improvement) pleading malicious falsehood is a legitimate response to a tortious wrong. The issue of malice still provides evidential challenges however often evidence of the accompanying or subsequent behaviour of the putative defendant can be relied upon to draw that inference.

The facts

The Appellant’s causes of action were malicious falsehood and unlawful interference with business.

The Appellant pleaded Read the rest of this entry »

Some more interesting though hardly surprising offerings on the Bill/Charter of Rights debate.  Timothy Watson posted Dragged kicking and screaming: towards an Australian bill of rights on the most recent On Line Opinion.  Watson has conducted an analysis of the coverage to date.  How dare he!  Not a bad article.  Michael Tate’s offering, Dangerous charter, is just plain silly.  Even using Lenin’s reference to Australia’s 1913 election as a hook to attract the reader’s attention (but it is more in this article) is as ridiculous as it is obscure. Where Tate gets it wrong in the specifics, rather than his overall flawed approach is to somehow suggest the courts will delve into the minutiae of the delivery of health services.  Wrong on any assessment of how Charters operate.  More to the point, assuming the presumption is correct, all a court would do is make a finding of incompatibility.  So what! It is far from dictating.  The new angle to this debate is Tate saying that the Senate Standing Committee for the Scrutiny of Bills does what the Charter is envisaged to do.  Wrong.  The Committee system of the Senate is valuable but its effectiveness is compromised by its membership and the nature of the legislation.  It splits on party lines when a “hot bill” lands in its “In Tray”.  Hardly a comparison. 

Peter Cosgrave has done an audio on ABC’s Big Ideas.  A fairly predictable rehashing of the arguments. 

Roy Morgan’s annual survey of the professions finds lawyers rating 14th out of 30 in the trust and ethics stakes, stuck between bank managers and public servants. Lawyers dropped 5 points from 2008 but 2007 – 2008 was something of a bumper year in the trust stakes. Nurses rate the highest while car salesmen rate the lowest. I am surprised that estate agents rate higher than journalists. I always thought we admired those who write fiction. The press release stated:

In the annual Roy Morgan Image of Professions survey 89% (unchanged in a year) of Australians aged 14 and over rate Nurses as the most ethical and honest profession — the 15th year in a row since Nurses were first included on the survey in 1994.

Pharmacists (84%, down 2%), Doctors (82%, up 3%) and School teachers (76%, down 2%) have been consistently ranked near the top while Dentists (69%, down 1%), Read the rest of this entry »

The legal section in today’s Australian produces three separate offerings on the Charter of Rights debate (if that is a correct assessment).  The banner story is Turmoil hits drive for a bill of rights, basically highlighting the varying degrees of support for a Charter of Rights with some querrying its constitutionality.  There is hardly going to be consensus amongst the various Bars and Law Societies so to that extent the article is not surprising.  The next article is the con, subtley titled The pro-bill of rights hoodwinkers’ handbook It is a fairly blunt straw man article.  Attribute a proposition to one’s foes in fairly stark and clumsy terms and then proceed to knock it down.  That is not to say the proposition doesn’t partly encapsulate some of the propositions but it is in the main, good old fashion misrepresentation.  I can’t let Propositions 3 and 4 to pass without comment:

Ploy No 3: Deliberately elide a) giving judges more powers and b) getting more protection of human rights. Branson says: “Every other Western democracy has more comprehensive protection of human rights than Australia.” Garbage. Look at the scope you have to speak your mind here, and then compare it with Canada and Britain (where they have powerful bills of rights). You can say more here.

• What tosh!  Read the rest of this entry »

Today’s Times article The art of interrogation is a fascinating, though disappointingly brief, analysis of  the difference between interrogation, favoured by US law enforcement, and the interview, as practised by the UK and Australian police.  The broad conclusion is that the interrogation technique is more about getting a result than the truth of a matter and is manipulative in both process and outcome.  The interview, by contrast, is therefore a more effective and ethical approach to investigating crimes.  In the main it is hard to argue with that. But…….. I have read enough records of interview to see police run with both approaches in the course of a sitting.  

In that vein it is sobering to read how the police behaved in Ogden v Bells Hotel Pty Ltd [2009] VSC 219 (5 June 2009).  Williams J, not noted for hyperbole, recounted how the police dealt with a suspect (with questionable basis) during a raid and the subsequent interview:

108 On 3 April 2006, members of the Armed Offenders Squad arrived at Ms Ogden’s house when she was asleep in bed, at 6.30 a.m. They stated that they had a search warrant and were looking for $50,000 and a gun.

109 In the course of the search that followed, Read the rest of this entry »