Peter A Clarke

The Age reports Paul Keating calling for reforms to Privacy Laws in Angry Keating demands changes to privacy laws. The offending incident is covered in the usual breathless style of the Daily Telegraph in Katherine Keating threat to kill photographer. Obviously the facts are buried under the high dudgeon of Keating patre and the indignant reportage of the scribblers of the society section of the Tele. Both are far from recorders of truth and shedders of light. What appears to be in common agreement is that some one took a photograph of Katherine Keating at a private indoor event.  She didn’t appreciate it.  If the organisers of the event invited the reporters in in today’s legal environment I am not sure Katherine would have much legal redress. Hence Heating the elders demand for a change to the Privacy Laws. But here is the rub, what changes does he seek? An absolute protection against photographs of the rich and silly. Even the English legal development isn’t pushing in that direction (though the Murray case will give some guide on that front).

All of this Keating outrage would be more easily believed if he had thought to look at reforming the law while he was in government, hell while he WAS the government. It is not like Read the rest of this entry »

Yesterday the Federal Government released its “first stage reponse” to the ALRC report on Privacy.  Senator Ludwig, Special Minister of State, in his speech Privacy – the way ahead, said the Government would essentially rewrite the Privacy Act.  Three cheers for that.  In particular the reforms will go to:

• having a Single Set of Privacy Principles. 
• Enhance the Privacy Commissioners Powers and functions.  And about time.  The role and actiivity Privacy Commissioner has been a disappointment.  But only part of that is due to the lack of powers.  Culturally there needs to be a more assertive role taken.  Unfortunately even in the revised form the lack of sanctioning power or ability to bring a civil claim (ala ACCC) will limit its effectiveness. 
• implementation of a three tiered scheme for privacy codes.
• expanding the credit reporting.  This will be very signficant.  In the Senators words:

In order to allow credit providers to undertake a more robust assessment of an individual’s credit risk, the Government will make changes which allow five positive datasets to be included on an individual’s credit report.  One of these will be repayment history, but the Government recognises that this information must be used responsibly, so it won’t be made available until the Government’s new responsible lending obligations are in place under the National Consumer Credit Protection Bill 2009

• Changes to health records privacy to allow for transfer of health records or access if the premises where they are located closes.
• Protections for cross border data flows with enforceable rights by the individual;

What the Government has shied away from is whether it will agree to a statutory right of privacy.  We will have to wait until next year.

Father Frank Brennan’s National Human Rights Consultation Report has been released. Let the “debate” begin.  It will be a boon for conservative commentators.  Janet Albrechtson will be running a piece every 3 weeks or so on the evils of a bill of rights (which this report is not even close to advocating.  Miranda Devine, Paul Sheehan, Glen Milne and a few other conservative commentators will get all rather excited.  A few non conservatives will all get a guernsey, Bob Carr the nominal Labor man (and someone who has long loathed the legal processes and the practitioners) and a few judges, Heerey being the most prominent. The Australian is fast out of the block.   The usual arguments will get dusted off being:

• The judges will subrogate Parliament.  Judges will rule the land.
• With the elites making the law democracy is thwarted.
• The elites will impose their form of morality and political viewpoints on the polity of the nation via the judge made law.

The proponent run the gamut of the centre to the left. George Williams is a pretty active operator along with any number of other social commentators.  Their arguments are equally predictable and simple (when boiled down to their essence):

• the rights are universal;
• it is fundamental to recognise them;
• The rights to be recognised are necessary to inform legislation;
• it is consistent with the universal convention on civil and political rights;

..and a few other issues .

The problem is that both sides adopt simplistic and usually inaccurate arguments.  With the exception of Canada a Charter of Rights has not led to any social engineering. In the US the legislature has long lived with strictures of the Bill of Rights.  The Supreme Court has waxed and waned in its enthusiasm for the Bill of Rights and its willingness to expand its scope.  The proponents are not entirely up front in explaining how weak a Charter or Rights/Human Rights Act will be.  It is a very anaemic form of legislation.  I have had people from the Victorian Government tell me how influential the bill is within the departments.  But so what!  That is a secondary and incidental benefit.  The Act/Charter should clarify, specify and protect the rights of citizens not the internal processes of the administrative units of the body politic. It is an artificial debate.

When Finkelstein J puts down gavel he would serve the community mightily in picking up the pen. He is one of the word smiths of the bench. His decisions are invariably succinct and precise. Besides there are not many other judges who are so comfortable with their prose to describe a witness as a rogue! Now if he could only work in villein, ruffian and neer do well… well we would have all the 18th century argot and arcania covered. More power to him!

Facts

In BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) the fact situation while straightforward proceeds involves a detailed chronology. Taking the highlights, the Applicant (BHPB) owned a bulk carrier, the Global Hawk, which it purportedly chartered to NCI, a company. The charter negotiations were conducted through the First and Second Respondents. BHPB believed First Respondent acted as broker for NCI. In fact the First Respondent was dealing with a person Finkelstein J described as a rogue who represented himself as acting for NCI but had never done so (par 43). The ship was delivered by BHPB into service of another company Nera and not NCI. Nera paid only a portion of the agreed hire. BHPB sought the balance from the agents, in particular the First Respondent (Cosco).

The causes of action are summarised at par 38:

BHPB claims against Cosco that it (1) breached s 52 of the Trade Practices Act 1974 (Cth) (TPA) (by engaging in misleading or deceptive conduct); Read the rest of this entry »

It is ubiquitous that a successful applicant for interlocutory injunctive relief gives an undertaking as to damages. But not universal. In Environment East Gippsland Inc v VicForests (No. 2) Forrest J considered the principles involving injunctions where there is a public interest component to the proceeding.

Facts

Notwithstanding the Plaintiff/applicant (Environment East Gippsland Inc) giving undertakings the Defendant (Vic Forrest) argued that the undertakings were inadequate (which was clearly the case). The Defendant, not surprisingly sought security by a payment into court by the Plaintiff.

Decision

The court declined to order security. It regarded the case as being an exceptional case; the proceeding was brought in the public interest and it involved obligations of the state involving conservation (par 4).

Forrest J considered the relevant principles (at pars 12 – 15) which provide that undertakings are normally required but in their absence accept security, though a court can not require it. It is a very useful summary.

Citing the recent Blue Wedges injunction Forrest J said Read the rest of this entry »

The UK Government has released a discussion paper, Defamation and the internet: the multiple publication rule which includes some very sensible reforms. Not the least of which is restricting liability to a single publication of a defamatory article rather than for each republication on the net.

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 »