It has been three years since Eliot Spitzer resigned as governor of New York after being exposed, so to speak, hiring a prostitute. Ashley Dupre was the high-priced prostitute Spitzer was accused of patronizing.

Ashley was offered a million dollars to be in a new Girls Gone Wild magazine spread and promotional tour. But when the producers realized they already had archival footage of her from years earlier, they revoked that offer.

Dupre sued Joseph Francis, the head of Matra Films (the producer of Girls Gone Wild) for $10 million alleging that he improperly used Dupre’s image from the archival footage. She claimed that because she was only 17 at the time, she didn’t understand the nature of what she was doing. Francis responded by releasing a video that made its rounds on the web that showed the 17-year-old Dupree saying she was of age, and presenting a New Jersey driver’s license bearing the name of plaintiff Arpaio.

Plaintiff filed this lawsuit against Dupre and Girls Gone Wild alleging defamation and invasion of privacy. After none of the defendants responded to the lawsuit, the court entered default against the Girls Gone Wild defendants. Plaintiff never properly served the complaint on Dupre, so it did not enter default judgment against her.

The court awarded plaintiff $3 million in damages. It based this figure on her testimony and other evidence relating to plaintiff’s distress from being mistaken for Dupre, her concern that future employment would be jeopardized from employers doing a Google search on her and learning of the situation, the harm from plaintiff’s children (someday) being exposed to insulting material, and plaintiff’s symptoms consistent with post traumatic stress disorder.

Not a bad piece in the SMH today, Privacy, phone cameras and celebrity encounters, about the ubiquitous camera phone intruding on celebrities as they go about their business, including going to the toilet.

Unfortunately it recites the problems and highlights the problems of not having anything even vaguely like a right to privacy.  If anyone can enforce such a right it is well heeled celebrities keen on keeping a private space.  Then again in the US, where there is a right to privacy (in certain circumstances) paparazzi are even more invasive and common than here.

The Obama administration plans to ask Congress Wednesday to pass a “privacy bill of rights” to protect Americans from intrusive data gathering, amid growing concern about the tracking and targeting of Internet users.

Lawrence E. Strickling, an assistant secretary of commerce, is expected to call for the legislation at a hearing of the Senate Commerce Committee, said a person familiar with the matter.

This person said the administration will back a law that follows the outlines of a report issued by the Commerce Department in December. The administration wants any new rules to be enforceable and will look to expand the Federal Trade Commission’s authority, this person said.

Among other things, the December report suggested that companies should ask an individual’s permission to use personal data for a purpose other than for which it was collected. The administration also eventually could propose that consumers be given the right to access information about themselves and to have the information stored securely, the person said.

Professor Megan Richardson, Professor at the University of Melbourne and expert in privacy law, has prepared an interesting paper titled Too Many Academics? The Experience of Privacy Law Reform.  Her thesis is that the chattering amongst the various academics and the range of reports from the law reform bodies has diffused and confused the message for reform which in turn has reduced the likelihood of reform being enacted.  There is no doubt that the proposed elements of a proposed tort of breach of privacy differs between reports.  But is that what has privacy law reform stuck in the long grass.  I doubt it.

Part of the problem is as Prof Richardson describes:

It is already very clear that there will be opposition from parts of the media to any proposals for privacy law reform, with some quite persuasive arguments being mounted – for instance, that we have got along fine without legislative privacy protection in the past; that the common law provides or will provide sufficient protection where needed including through the equitable action for breach of confidence which has been recognised by courts as giving considerable protection against the misuse of private information; that Australian media are generally self-restrained; and that there are large segments of the population who don’t care much for privacy anyway.

to which she counters:

Each of these arguments can be countered: for instance, Read the rest of this entry »

Today’s article in the  Australian, Judges reclaim power from political masters, is a thoughtful piece on the court’s more assertive approach to legislative limits on discretion. At least the first part of the article is.   This court has been much more inclined to not only defend judicial independence by striking down prescriptive legislation but it has also been more receptive to broadening established principles.  That shouldn’t be regarded as notable except that it stands in fairly strong contrast to the Gleeson High Court. A simple for instance is the approach taken to offshore processing.  Previously the court gave it the green light.  In Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 while not overturning or even disturbing the process dealt with procedural fairness.  I am not sure that the pre French court would have been so moved to action.

What is distinctive and powerful about the High Court’s decisions this year is that most decisions are overwhelming majorities if not unanimous.  Given the reputed conservativeness of Keiffel and Crennan and cautious black letter approach of Hayne and Gummow this is an approach many commentators would have expected.

Chapter 2—Overarching Purpose and Overarching obligations

Part 2.1—Overarching Purpose

The general commentary in the explanatory memorandum to Part 2.1 provides:

There are existing provisions in the Supreme and Magistrates’ Courts Acts as well as the Civil Procedure Rules applicable in each of the Supreme, County and Magistrates’ Courts, which define the purpose and duties of Victorian courts in civil matters.  The Commission recommended the introduction of a uniform statutory statement to define the overriding purpose and duties of the courts in relation to civil matters.

Section 7          Overarching purpose

The section provides:

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

(2) Without limiting how the overarching purpose is achieved, it may be achieved by—

(a)     the determination of the proceeding by the court;

(b)     agreement between the parties;

(c)     any appropriate dispute resolution process—

(i)        agreed to by the parties; or

(ii)        ordered by the court.

The explanatory memorandum for section 7 states:

Clause 7    provides a statement that defines the overarching purpose of the  Bill and rules of court in relation to civil proceedings that will be a foundational guide to the courts when exercising their civil  jurisdiction. That purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.  This might be achieved by determination of the proceeding by the court, agreement between the parties or any appropriate  dispute resolution process agreed to by the parties or ordered by the court.

Section 8   Court to give effect to overarching purpose

(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers, whether those powers—

(a)     in the case of the Supreme Court, are part of the Court’s inherent jurisdiction, implied jurisdiction or statutory jurisdiction; or

(b)     in the case of a court other than the Supreme Court are part of the court’s implied jurisdiction or statutory jurisdiction; or

(c)     arise from or are derived from the common law or any procedural rules or practices of the court.

(2) Subsection (1) applies despite any other Act (other than the Charter of Human Rights and Responsibilities Act 2006) or law to the contrary.

The explanatory memorandum provides

Clause 8    The courts will be required to give effect to the overarching purpose when exercising or interpreting powers. The court must give effect to the overarching purpose, despite any other Act or law to the contrary, except for the Charter of Human Rights and Responsibilities.

Section 9          Court’s powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—

(a)     the just determination of the civil proceeding;

(b)     the public interest in the early settlement of disputes by agreement between parties;

(c)     the efficient conduct of the business of the court;

(d)     the efficient use of judicial and administrative resources;

(e)     minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—

(i)        the fair and just determination of the real issues in dispute; and

(ii)        the preparation of the case for trial;

(f)     the timely determination of the civil proceeding;

(g)     dealing with a civil proceeding in a manner proportionate to—

(i)        the complexity or importance of the issues in dispute; and

(ii)        the amount in dispute.

(2) For the purposes of subsection (1), the court may have regard to the following matters—

(a)     the extent to which the parties have complied with the pre-litigation requirements or any other mandatory or voluntary pre-litigation processes;

(b)     the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c)     the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d)     the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e)     the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f)     any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g)     the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h)     the extent to which the parties have had the benefit of legal advice and representation.

(3) This section does not—

(a)     limit any other power of a court to make orders or give directions; or

(b)     preclude the court from considering any other matters when making any order or giving any direction.

The explanatory memorandum provides:

Clause 9    provides that when giving effect to the overarching purpose, a court must have regard to a broad range of objects, including the public interest in the early settlement of disputes by agreement between the parties and the efficient conduct of the business of the court.  In furthering the overarching purpose, the court may also have regard to a broad range of discretionary matters including the extent to which the parties have complied with the pre-litigation requirements under the Bill or any other pre-litigation processes.  This means that what the parties and legal practitioners do before a proceeding commences may come under the scrutiny of the court later on, if it turns out that there has been a failure to take reasonable steps to resolve the dispute.

The court may also have regard to the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute, the public importance of the issues in dispute, and the extent to which the parties have had the benefit of legal advice and representation.

Part 2.2—Application of the Overarching Obligations

10          Application of overarching obligations—participants

(1) The overarching obligations apply to—

(a)     any person who is a party;

(b)     any legal practitioner or other representative acting for or on behalf of a party;

(c)     any law practice acting for or on behalf of a party;

(d)     any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding, including, but not limited to—

(i)        an insurer;

(ii)        a provider of funding or financial support, including any litigation funder.

(2) Subject to subsection (3), the overarching obligations do not apply to any witness in a civil proceeding.

There are 12 bills before the Parliament or awaiting Royal Assent at the end of the 2010 parliamentary year.  They are:

Civil Dispute Resolution Bill 2010

This Bill has passed the House of Representatives and, on 25 October, passed the second reading phase.  The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee.  It’s report is  due 2 December 2010. The text of the bill and the explanatory memorandum are both on line.

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010

This bill amends the Criminal Code Act 1995 to enable Australia to ratify the Convention on Cluster Munitions by creating offences and penalties in relation to cluster munitions and explosive bomblets with some defences for certain circumstances and provides for certain authorisations to be made.

It is currently before the Senate.  The text of the bill and the explanatory memorandum are on line.

Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Bill 2010

The bill validates certain parenting orders affected by the High Court decision in MRR v GR [2010] HCA 4 and amends the Family Law Act 1975 to Read the rest of this entry »

Earlier this week Beach J, in a preliminary ruling, declined to grant a defendant’s application to extend the period within which to pay jury fees (“green fees” in the old parlance) citing the principles in Aon Risk Services Australia Limited v Australian National University and the Civil Procedure Act 2010.

Facts

The Plaintiff’s endorsed writ sought a trial by jury (see [1]) . The Plaintiff did not make payment of first  day’s jury fee by the date previously ordered by Zamitt AsJ (see  [11])   The Defendant made application to extend the time within which jury fees could be paid ([11] – [12]).  The  Plaintiff applied to have the matter tried as a cause ([14]) on the basis “… of the time and cost involved in hearing the proceeding as a jury, compared to the time and cost involved in hearing the matter as a cause.”

Decision

While his Honur stated that “all other things being equal” he would be prepared to grant the Defendant’s application he was mindful of the time and expense of a jury trial compared to a cause.  He estimated that the former would take twice as long to complete (see [16]) because of:

(a) the time taken to empanel a jury;

(b) the plaintiff’s Read the rest of this entry »