Peter A Clarke

The current High Court’s reputation as a black letter court is well established.  In Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41  the court has effectively closed off any challenge to a statutory demand based on a tax assessment. With Broadbeach and  Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9 whatever limited discretion given to the Supreme and Federal Courts are now severely curtailed.  It is an interesting case because the court considered the policy considerations and tensions in considering the operation of statutory demands when enforcing the Income Tax Assessment Act.  In the clear tension between the two, the Court has sided with the Commissioner. Protecting the revenue is a strong policy consideration guiding the modern court. 

A brief analysis follows: Read the rest of this entry »

Justice Byrne can turn a phrase when he has the mind to. Quite lyrical in fact. He can also be brutally blunt as he picks his way through the entrails of barrister’s pleadings.  Hydedale Pty Ltd & Anor v Robert Luxmoore Pty Ltd & Ors is a fairly straightforward, if anything about a property development partnership can be so described.  Most of the relevant evidence is oral and the book work is a mess.  In my experience that is the handiwork of the knockabout developer.  Where the case is is useful is the comments His Honour made about the role of counsel and how the pleadings should relate to the way barristers should run their case:

The relevant comments are at: Read the rest of this entry »

One of the most frustrating aspects of litigation is winning a case and not being able to recover under a judgment. Hiding assets pre, during or post litigation is stock in trade of wily defendants. Forrest J’s decision in last Friday’s Zhen v Mo & Ors is a useful analysis of the principles involved with the grant of a Mareva Injunction. The action is more on the prosaic side. It is a de facto property dispute between a couple over the assets of their $2 shops. There is no good reason why these cases should still be heard in the state courts of Australia rather than the Family Court. The only, and it is a bad one, reason is that the conservative federal government just passed wouldn’t consent to the transfer of jurisdiction.

Relevant extracts of the decision: Read the rest of this entry »

The Australian acted true to form this week in doing the Henny Penny thing withe the Law Reform’s report on Privacy.  The report was released on Monday (11 August) so come Tuesday the Australian leads off with a piece on how business is going to be lumbered with compliance costs . But that was just the start.

If VCAT wanted to get a nice splash of coverage as one of the “good guys” on climate change it got it care of Gippsland Coastal Board v South Gippsland SC. One of the reasons for overturning the council’s permit is the possibility of rising sea levels.  So now the law courts buy into the scientific debates.  The evidence is a CSIRO report.  Intellectual rigor is not the by word for this decision. Read the rest of this entry »

The Fairfax paperrs today has a front page article about Google’s Street View map for Australia, Smile Australia you’re on Google’s candid camera.  Not a bad article not so much for covering the launch and highlighting the critisism.  What it highlights is who lame our legal protections are.  The Privacy Commissioner is quoted at saying should would continue to monitor street view.  And do what?  It is hard to see how the Privacy Act applies.  If the photographs are of a building and the photograph was taken from the street what exactly is the record that would give the Privacy Commissioner the power under the Privacy Act??

Dan Svantesson supposedly applauded the Google for developing blurring technology and then said it might not be enough.  Talk about a lame approach to a real invasion of privacy. 

This grotesque breach of privacy is why there needs to be a tort of privacy.  

Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB) (24 July 2008)

Outlaw.com reports that nearly two out of three marketers have had client’s data lost or stolen in the last 2 years.  Ninety percent of those instances were not reported.  The report provides: Read the rest of this entry »

Defamation litigation is prone to interlocutory stoushes. Statements of Claim are regularly amended with imputations polished and expanded as time goes on. On the defence side there are fights over the statement of claim and pleading the various defences. Given the cap that now applies to Defamation cases these interlocutory stoushes are probably going to make defamation matters even less likely to run. That is a bit of a pity given I like practising in this area. Working with language, arguing what words mean is fascinating.

Dyson Hore Lacy and Phil Cleary are in a grinding piece of litigation. It has been hard fought so far with applications to the Practice Court and onto the Court of Appeal. If this case goes to jury it will be spectacular.  Justice Kaye had to adjudicate an application by the defendants to amend their defence to plead fair comment. Bringing interlocutory applications on the pleadings are more important in defamation actions than most other civil claims.

Kaye J writes well. He wields a Mont Blanc with precision. It is far from lyrical prose but it is very clear. His decision is a very useful analysis on fair comment.  Read the rest of this entry »

When is a self executing order not a self executing order.  When a court is loathed to stop someone having their day……. eventually.  A court will bend over even further when the malefactor is self represented. 

Things don’t auger well when a judgment starts:

1 The appellant, Alan Jorgensen, is a serial defaulter. That is to say, he has been persistently dilatory in taking steps in his appeal.[1] His notice of appeal was lodged in January 2006. More than two years later, there is no agreement on the contents of the appeal book.

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