Peter A Clarke

In my experience there is a growing tendency of legal representatives copying letters to their opposing numbers to the court when there is a judge allocated to a proceeding.  The Internet makes that feasible and an easy operation.  There is also a tendency to correspond with a judge’s associate, copying the other side.  Both practices are fraught.  Courts try to be flexible and the assistance by some associates in facilitating consent orders is a terrific example of marrying technology with being responsive to parties needs.  The cost and time savings in not having to attend to get an adjournment or the worry in whether a fax has got to the court in time to adjourn a date off is significant.

But there is a limit and there is propriety………….and Singh v Secretary, Department of Employment and Workplace Relations is a salutory lesson in overstepping the line.  

The Full Court’s commentary Read the rest of this entry »

The one critisism that should never be levelled at the Australian and that is consistency of purpose.  Through Albrechtson and Merrit it bangs on and on and on about the evil of a bill of rights or its less effective cousin, a Charter of Rights. Every so often it brings the tedium by “reporting” in breathless terms on another fault or twenty by one of the anti chartists.  Today’s Legal Affairs section has such a report, this time from the heart of intellectual analyis, the Police Federation of Australia.  Rights charter opens police to ‘legal risks’  is another run at the same theme.  This time the boys in blue are afeared of new risks…… Oh c’mon!  Police forces in the US have to deal with a Bill of Rights and somehow manage to work their way through that hell.  Same as in England.  And in Victoria and the ACT for that matter.      

The constant sub theme is that this pandora’s box is owned and operated by unelected judges who will become de facto legislators.  And it shows its face in this screed with:

It argued that an enunciation of individual rights could clash with provisions in existing laws, leaving courts, rather than parliaments, with the job of determining whose rights should hold sway. “For example, coercive powers in national security laws requiring alleged suspects to answer police questions may be found to be incompatible with the right to silence or privacy,” the federation said.

The courts consider the balancing exercise every week of the year.  Sometimes the bench makes rulings which enhance rights, sometimes it restricts.  It is called the common law.  Somehow the courts have been able to steer a path through these difficult situations for almost a millenium.  

I am not a supporter of either cause thus far.  I can see the benefits in a Bill of Rights, especially in political system which is relatively inflexible and given to rule by executive fiat.  With less party discipline I would have more faith in Parliament to debate issues going to our rights and responsibilities.  But a Charter or Bill of Rights is what the framers make of it.  It is not evil per se. 

Time for a more sensible and nuanced debate.  And something a bit less predictable from the OZ.       

The bane of a litigators life is an unrepresented litigant.  Another burr under the saddle is a corporation represented by an officer.   Unrepresented litigants, with a few notable exceptions, often put arguments that are exciting to make but not relevant.  That is not to say lawyers are free of running ridiculous points.  A few appearances before an overworked judge usually cures an advocate of running silly points.

In Worldwide Enterprises Pty Ltd v Silberman & Anor Forrest  J  heard an appeal by defendants seeking to stay the pleading under Rule 1.7 of hte Supreme  Court Rules until the plaintiff engaged solicitors.  The Defendant also sought security for costs.

Representation Read the rest of this entry »

The Age has a full page interview in today’s Age and an exclusive splash in the Herald Sun.  It is a clever enough piece in that it skirts sub judice restrictions.  Theophanous is now hinting at police impropriety (not illegality) and bias (again not illegal).  The reported comments in the Age on Friday was far more strident.   Today’s story seems to serve to smooth the sharp edges to Theophanous’ character.  That he makes admissions about not being a saint and hints about what might be discovered in his texts suggests that might pose a problem for him.

All of this is disturbing.  Read the rest of this entry »

I love the Lexington section in the Economist.  A vehicle for analysis of a person or topic not on the immediate news horizon but clearly relevant.  It is at its most useful when acting as a mini biography of an important but not reported upon personage.  Sometimes it analyses some aspect of the political landscape, often the state of the parties, their operatives or the electorate.  Usually first rate stuff .

The latest offering, Law v common sense, is just plain awful.  The same old trite lines about litigation ruining everything and causing gridlock.  The thread of the story is a series of  admittedly scandalous examples of appalling abuses of civil litigation process. The article does have a point in commenting on the exponential growth of the number and size of statutes and regulations.

What the article (but not the associated comments on the web) forgets is: Read the rest of this entry »

Today is the 59th anniversary of George Orwell’s (Erice Blair) death. He has always been my hero. That said he was hardly the pure sanctified oracle which is current view of him. It took a scarifing experience in the Spanish Civil War for him to develop his famous skeptisism of totalitarianism, humbuggery and intellectual sloth. Like Abraham Lincoln he has been turned into something a secular saint. That is a pity. Lincoln’s political path Read the rest of this entry »

Even with the sub judice rule applying the Theophanus case throws up some interesting stories in the press.  The Age reports in Secret search of Theophanous’ office that the police secretly searched Theophanus’ office.  The opening paragraphs set the scene and highlight the issue: Read the rest of this entry »

We all have moving moments in our childhood when we stumble upon a beautiful image or wonderful prose, so magnificent to our young eyes that we feel we can move mountains and want to change the world to meet that image. One of those moments for me was reading the “Yes Virginia” editorial. It captured what clear, pure prose should be with a wonderful imagery. It is described as one of the most famous editorials ever written. A big call. But in the cynical issues driven world of OP ED and editorial writing it stands out. What also inspired me was that a big city newspaper was prepared to take the innocent inquiry of a young child to heart and respond.  Sure there was probably an alterior motive, it made everyone look good.  But it didn’t have to be done.

Now that I have a blog I can go all misty from time to time. And Christmas day is the time to do it. Here it is:

We take pleasure in answering thus prominently the communication below, expressing at the same time our great gratification that its faithful author is numbered among the friends of The Sun:

Dear Editor—

I am 8 years old. Some of my little friends say there is no Santa Claus. Papa says, “If you see it in The Sun, it’s so.” Please tell me the truth, is there a Santa Claus?

Virginia O’Hanlon

Virginia, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men’s or children’s, are little. In this great universe of ours, man is a mere insect, an ant, in his intellect as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge.

Yes, Virginia, there is a Santa Claus. He exists as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy. Alas! how dreary would be the world if there were no Santa Claus! It would be as dreary as if there were no Virginias. There would be no childlike faith then, no poetry, no romance to make tolerable this existence. We should have no enjoyment, except in sense and sight. The eternal light with which childhood fills the world would be extinguished.

Not believe in Santa Claus! You might as well not believe in fairies. You might get your papa to hire men to watch in all the chimneys on Christmas eve to catch Santa Claus, but even if you did not see Santa Claus coming down, what would that prove? Nobody sees Santa Claus, but that is no sign that there is no Santa Claus. The most real things in the world are those that neither children nor men can see. Did you ever see fairies dancing on the lawn? Of course not, but that’s no proof that they are not there. Nobody can conceive or imagine all the wonders there are unseen and unseeable in the world.

You tear apart the baby’s rattle and see what makes the noise inside, but there is a veil covering the unseen world which not the strongest man, nor even the united strength of all the strongest men that ever lived could tear apart. Only faith, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

No Santa Claus! Thank God! he lives and lives forever. A thousand years from now, Virginia, nay 10 times 10,000 years from now, he will continue to make glad the heart of childhood.

It is written in in the 19th century style, it was written in 1897, so appears a little stilted to our eyes. I love that slight formality. It remembers a time when people love working language for its own sake, for the cadence and rhythm. For more information about this wonderful story and the author of the piece have a look here.

A Merry Christmas to all who read this. May you have a happy and holy festive season!

One of those year end stories from Times on Line. Usually they run to best/worst films, whose hot/not or something like that.  Not often do you get The weirdest legal cases of 2008. A good idea for the Legal section of the Australian or the Australian Financial Review.  The problem is that the Australian hates lawyers so much they couldn’t summon the wit to poke gentle fun.  Way too much into weilding a scimitar.  And the AFR is just plain stuffy.

Attorney General McClelland has cloaked himself in deep symbolism, the 60th anniversay of the Universal Declaration of Human Rights by launching the National Human Rights Consultation, whatever that means.  The press release is a marvel of good feeldom: Read the rest of this entry »