Peter A Clarke

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.

The Opes Prime collapse is the gift that keeps on giving, litigation and judicial decision wise at least.  Finkelstein J, the judge assigned to the proceeding, has handed down a number of decisions involving the initial insolvency and now the class action. Given the “no quarter” approach that seems to be taken by the parties at this early interlocutory stage more decisions are likely in the future, well before trial.  This decision arose out of an application by the respondents to strike out the statement of claim or summarily dismiss the proceeding. Finkelstein J took the opportunity to review the general principles.

Strike out application (paragraphs 4 – 5,  8 & 10).

Features of a strike out application are: Read the rest of this entry »

In this decision Justice Buchanan did not award the successful party its full costs.  Costs are always discretionary however the ordinary rule, absent issues of offers of compromise and Calderbank letters, is that costs follow the event.  In this short but comprehensive decision he explains the circumstances justifying when to depart from the ordinary rule.  The decision is significant because it collects and summarises the key principles. 

At paragraph 11 Buchanan summarised the three key principles Read the rest of this entry »

Sir Elton John is not famous for his sense of humour. There is a steady stream of you tube videos evidencing that. Little wonder that he commenced proceedings against the Guardian Newspaper. His claim has hit an early bump in the litigation road. Guardian had significant success in striking out Sir Elton’s claim. Guardian pleaded fair comment. It is a useful decision dealing with an application to strike out imputations.

The article

The article in a weekend piece was: Read the rest of this entry »

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 »

The Age’s piece SBS Swift action at Kovcos’ complaint is another disturbing drift to censoring anything that pokes fun at our modern day Sacred Cows.  And the the ADF seems to be the top heifer in that paddock.  Twenty years ago the ADF and Army Reserve were having a hard time getting a recruiting table at a University and thirty years ago the looney left wanted to ban the ANZAC day parade.  And anyone who has seen One day of the Year by Seymour will realise that when the baby boomers were in full throat the army was seen as a national curse not the current blessing. I think the army is a proud institution that deserves respect.  But not subservience.

Swift and Shift Couriers is biting, often crass, but more often witty and slightly scatalogical humour which aims to offend and amuse in equal measure.  SBS knew what it was getting into.  Swift is not much different than Pizza, by the same producers, and that program went down then up a list of ethnic groups to offend and other groups to poke and prod.  Not everyone’s taste but part of the panoply of humour that should be available to all. 

Last Monday’s episode contained a very thinly veiled parody of the farce that was the recovery of Kovko’s (the character being “David Cobbgrove”) body Read the rest of this entry »

It is quite common for an appellant to seek a stay of execution of a judgment pending resolution of an appeal.  It is surprising that many litigants ( and, I suspect, their legal representatives) believe that lodging an appeal constitutes a stay of execution and then the presumption is in favour of such a stay.  The contrary is the case. Read the rest of this entry »

In the Federal Court Skouloudis v St George Bank Ltd Edmonds J provides a detailed analysis of the operation of section 41(5) of the Bankruptcy Act 1966. Through it a debtor may set aside a Bankruptcy Notice.

Section 41(5) provides:

(5)  A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

St George Bank, the respondent. obtained judgment in the sum of $2,176,026.95 plus costs in July 2001.  Skouloudis, the appelllant, repaid $1,788,389 by 2004.  Just before the 6 year bar on issuing a notice on a judgment St George issued a bankruptcy notice for $2,176,026.95.  Skouloudis served a 41(5) notice claiming the Bankruptcy Notice contained an overstatement of the amount because it did not give credit for payments made.

After considering the authorities at length Edmonds J key findings of are:

• an overstatement of the amount actually due in a bankruptcy notice renders it invalid provided the debtor complies with the time constraints in 41(5) (see par [23] – [24]);
• if a bankruptcy is declared invalid that invalidity applies from the date of issue, not from the date it is declared invalid (par [25]);
• It is open for a Court to amend a Bankruptcy Notice prior to the debtor giving notice under section 41(5).  But once the notice is provided and the Bankruptcy Notice is found to be invalid, it is not a notice under the Act and therefore incapable of amendment (see the logical reasoning at [28] – [35]).

The other salient lesson is that the creditor should be wary of issuing a Bankruptcy Notice at a time so proximate to the 6 year limit.

On Friday the Herald Sun returned to the grubby practice of running unsubstantiated assertions in the allegations into Theo Theophanous. This time the Herald Sun ran a tawdry piece giving Rita Theophanous a free kick to rail against  the complainant and then publishing an open letter.  The allegations are a mish mash of second and third hand beliefs and suppositions.  Read the rest of this entry »

The patented David Stratton myopia about Australian Films is on display in True character comes to light. He describes the main characters thus:

The audience is introduced to members of the group by newcomer Alex (Grant Dodwell), whose life has been ruined because of compulsive gambling. Other members include Lucas (Steve Le Marquand), an uptight, uncommunicative salesman; Cecil (Don Reid), an elderly widower who leads a solitary but ordered existence; Freddy (Steve Rodgers), who is in every sense the most rounded character, a stand-up comic whose wife left him because she found him repulsive and who desperately misses his child; Moses (Paul Tassone), who lives in squalor; and Paul (Paul Gleeson), who organises the gatherings and in whose home the men usually meet. Initially, none of these characters seems to warrant our sympathy. But all that changes as we discover more about them, and this is especially true in the case of Freddy, whose story is a particularly poignant one.

Why oh why wouldn’t you just want to run to the cinema to empathise with this lot. Read the rest of this entry »