Peter A Clarke

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 »

Today’s editorial in the Australian is a spot on description of what is wrong with the Australian Film industry.  I was particularly taken with the statement:

Antony Ginnane, the new president of the Screen Producers Association of Australia, however, is only partly right when he says our films are “in the main, dark, depressing, bleak pieces”. He could have said “dark, depressing, bleak pieces … too often obsessed with drug addiction, deadbeats, failure, toilet humour, gay relationships and hokey spirituality.” Mr Ginnane’s general view that “the feature film side of our industry has for some years now almost completely failed to connect with and find an audience” hit the nail on the head. As he told the association’s conference on the Gold Coast: “Nobody goes to see them. If they premiered most of the Australian movies of the past 24 months on a plane, people would be walking out in the first 20 minutes.”

Completely spot on.  Read the rest of this entry »

It was a good day at the office for the plaintiff’s legal team in an interlocutory stoush over the arcania that is a “fair comment defence.”  In Buckley v Herald & Weekly Times the plaintiff’s succeeded in striking out a defence of fair comment.  The plaintiff’s request for further and better particulars was also largely successful.  The defendant’s application for discovery was an honourable draw with the defendant being more successful than not. As usual Kaye J writes with a crispness that one hopes will take off and sweep the bench.

Fair comment Read the rest of this entry »

Remember remember the fifth of November
Gunpowder, treason and plot.
I see no reason why gunpowder, treason
Should ever be forgot…

Guy Fawkes has a lot to answer for. Read the rest of this entry »

Louise Adler has feisty defence of MUP and a full on attack on Julie Bishop’s plagiarism in today’s Age. Her red hot go at Julie Bishop is well aimed and wholly justified.  But while I think the traffic is mainly one way there is a plenty enough to share around.  As editor Peter van Onselen had a role that extended beyond get contributors and making sure they filed copy by the due date.  Did he not look at the material and check a fact or two?  Did he not make any suggestions about style?  Even if it is not an academic tome his name and that of MUP is attached to the work. It is all very well to lay into Julie Bishop et al and but a bit of intellectual rigor from the publisher is part of the process too.

Where Julie Bishop loses me is Read the rest of this entry »

The Thirty Years War of 1618 – 48 has sunk into relative, if not complete, obscurity with most historians.  Or least those that write for the masses.  Interest in military history tends to focus on the struggles of the twentieth century followed by the American Civil War and the the Napoleonic War. The Roman conquests and those of Ghengis Khan continue to fascinate of course and why not. They are amazing feats.  That said their impact on modern society pales into insignificance to what the Thirty Years War did to Europe and the impact of the Treaty of Westphalia, signed in Munster this day 360 years ago.

The Thirty Years war started out as a war of religion, the post reformation clash between Protestant and Catholic powers, fought mainly in Germany, and ended up a war between the two (Catholic) Superpowers, France and Spain. It marked the transition from battle being fought largely with cold steel and the push of the pike to the mass use of firepower in the form of musketry and artillery.  It was also one of the most brutal wars ever fought.  It cost 350,000 dead on the battlefield and 8 million civilian casualties.  Germany lost 40 percent of its population.  By way of comparison in World War II, Byelorussia, which suffered the greatest loss per capita losses, (followed closely by Poland) lost 17 per cent of its population.  When the city of Madgeburg was stormed on 20 May 1631 only 5,000 of 25,000 survived the pillage.  By the end of the War the German countryside, usually incredibly fertile, couldn’t support 2,000 men the march. That had a huge impact on the way wars were subsequently fought, in Europe at least. While they were bloody affairs they had a formality about them and there was very little plundering.  For over 200 years wars had relatively little direct effect on a civilian population unless the poor schmucks were in a city under siege or living on or near a battlefield.  Wars revolving around religion became an anarchronism. Modern ideologies of Communism and Fascism are the closest modern manisfestation and that took over 250 years to re emerge (and the analogy is stretched too thin even with that comparison).  It wasn’t until the twentieth centuries conflict that indiscriminate violence on the civilian population became endemic and the notion of making war on an entire people (with bomibing of cities and deliberate starvation policies). Read the rest of this entry »

Often, from little cases come big principles.   A snail in a bottle of ginger beer at the Wellmeadow Cafe in Glasgow spawned the tort of negligence courtesy of Donohue v Stevenson ([1932] AC 562).  A fight over what the ticket said about the terms of usage of the Balmain ferry gave Mr Robertson a merry ride up to the High Court and then across the pond to the Privy Council and Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. 

I doubt whether Clarke v Elias will hit such lofty heights on the question of delegation of powers.  It is notable for the minor issue in question, a $100 fine for a driver wearing jeans in contravention of the regulations.  One can only hope not.  Clarke, who lost at first instance and then on appeal to the County Court, argued that there had been an invalid delegation by the legislature to the Secretary of the Department.  The nature of the invalidity was that the Secretary did not have the power to set uniform standards.

Relevant principles Read the rest of this entry »

Justice Reeves decision yesterday in NTD8 v Australian Crime Commission (No 2) [2008] FCA 1551 (17 October 2008) has caused a minor stir in the media.  PM’s coverage of the story portrays it as a confidentiality/medical records type case whereas in fact the matters under consideration were technical and narrow. 

The test, as Reeves J saw it, was Read the rest of this entry »

Both the Age and the Herald Sun have run almost identical articles about Theo Theophanous calling for privacy.  No surprises why.  Both AAP pick ups.  I wholeheartedly agree with the call for privacy (that amorphous non legal concept which should be protected by the law.  Another comment for another time) but have a bit of a problem with the call being made now.  It seems that the  Theophanous camp has already ascribed a motive to his accuser (a payout, compensation however else you want to describe it) and engaged in some public banter.  While I can understand the spin (maybe) it is a bit hard to call for privacy after you have indulged in a bit of media play yourself.  But never to late to change tack. 

The statement has its own flaws.  It reads:

“I just want to make a statement on behalf of the family following some legal advice that we’ve got,” Harry Theophanous said.

“We want to again inform the media that it’s inappropriate for anyone to make any public comments about this case as it would amount to interfering with a police investigation.

This paragraph is overbroad to the point of being just plain wrong.  So anyone making any public comments about “this case” ( whatever that means) constitutes an interference with the police investigation.  New law being created right before our very eyes.  So the Premier’s general commentary about his lack of knowledge until the last moment and urging the police to investigate quickly, as he did, is an interference.  Really?  Comments about the way the controversy has been reported is an interference with a police investigation.  Who would have thunk it!  The paragraph is just plain nonsense. Dramatic nonsense, but nonsense nevertheless.  Whether there has been interference, hinderance, perverting the course of justice depends on what is said to whom and when.  It is, like most things in the law, a matter of looking at the facts and applying the principles.  Be sure that the boys in blue won’t be pulling out the bracelets and slapping them on everyone who makes a comment about “the case.”

“For this reason, my father is unable to speak to the press, the family is trying to deal with a difficult situation and we’d like our privacy respected.

Of course Theo Theophanous can speak to the press.  Whether he should is an entirely different matter.  In the normal course he would be foolish to do so.  But that is not what the statement says.  Again, it depends on what he says and why.

“We urge you to let justice take its course and allow the police to complete their inquiries.

“There will be no further comments from the family, thanks.”

  With a bit less commentary this sad saga should loss some of its spark.  Or at least one can only hope.  As for Theophanous’ legal advice, well I whatever the author was smoking, it is time to share man!