2016: Not Such a Good Year (Part 5: The Election to Get Rid of the Pesky Cross-bench)

Australian election Yes, it was also an election year. It was a perfectly orderly festival of democracy in which people got who they voted for with little corruption and a retreat from the two party duopoly to spice things up a bit.  I do not mean by including a report of the election to suggest that it was particularly indicative of not such a good year.

Prime Minister Turnbull figured that Australians were rejoicing so authentically in the fact that there has never been a more exciting time to be an Australian that he might as well scoop up as much of the love as was possible and convert it into power. So he called a double-dissolution election and changed how we vote in the Senate so as to make it harder for micro-parties to get elected. He told the land that what its people needed was a strong majority government, to rid itself of what he characterised as the chaos of the Rudd-Gillard-Rudd years of minority government.

The Labor party, the Greens and independents almost pulled off a 2016esque underdogs’ upset, a bit like how Pakistan came within 40 runs of achieving the greatest second innings run chase in test history at the first test at the Gabba. (Who knows what might have happened but for Steve Smith’s freak run out to take the 10th Pakistani wicket?) The Coalition’s 21 seat majority was reduced to a 1 seat majority, but Treasurer Morrison, who was so irritating on election night in his unshakeable, smug confidence that the Coalition would be returned to government in his own right was, to give him his due, right. The Prime Minister gave a miserable victory speech about which no one at all enthused.

In a double dissolution election, you only need half the votes you normally do to find yourself called to the Senate (though in this election the 3 least successful elected senators in each state will serve only three year terms). And more than a third of voters gave their first preference in the Senate to a party other than the Coalition and the Labor Party. There was accordingly a more than usually interesting haul of senators. Ironically, there are more Greens and cross-benchers than ever before. Following the election the government needed the vote of at least one senator from Pauline Hanson’s One Nation Party to pass any legislation opposed by both Labor and The Greens. That Party wants a Royal Commission into Islam, a Royal Commission into climate science, as well as the scrapping of the renewable energy target. Continue reading “2016: Not Such a Good Year (Part 5: The Election to Get Rid of the Pesky Cross-bench)”

Lawchestra’s next concert

Terminus A4 poster

It’s Law Week.  And a key event is a grand Bottled Snail event  — ‘Terminus’ — combining the forces of Dan Walker’s Habeas Chorus, a choir of members of the legal profession, and Robert Dora‘s Melbourne Lawyers’ Orchestra, aka The Lawchestra, full of law students, barristers, solicitors, and a judge. It features, not very prominently at all, yours truly on second flute.

There is even a trailer you can watch here.  There are two performances: afternoon and evening, this Saturday, in St Paul’s Cathedral (consider bringing a small cushion).  You buy tickets here, and the profits will go to Bottled Snail which makes a substantial donation each year to the Tristan Jepson Memorial Foundation, whose aim is to improve the mental health of lawyers.  Great strides are being made by our profession, a little late perhaps, but there is much more to be done with regard to mental health, as my own practice regularly reminds me.

W.A. Mozart’s last piece, his Requiem is the support act.  Headlining the gig, though, is the Melbourne premiere of local composer Dan Walker‘s Last Voices, a setting of the last poems of D.H. Lawrence, Robert Herrick (a 17th century poet who begat ‘Gather ye rosebuds while ye may’), Elinor Wylie (a famously beautiful American poet popular in the roaring 20s), the American transcendentalist Ralph Waldo Emerson, and Thomas Hardy of Victorian England.  It is beautiful and treads the line exquisitely between being accessible and being dumbed down.  It’s tuneful yet dissonant. Modern, yet respectful of tradition.  I love it.  It’s not available on Spotify.  There is not even a recording of it.  It’s real yet improbably transitory.  Either you come to the concert, or you miss out.

There are a lot of shows, and not much time.  So I would not be surprised, unless you are a close relative or colleague of a performer, if you thought to yourself in contemplation of your own not so distant death — Life is too short to listen to community orchestras.  But we’re absolutely nailing this one, and I have no hesitation in inviting you to come along in order to hear a great concert, rather than out of any sense of duty.  If we were to attempt Bartok’s Concerto for Orchestra, it could be painful. But these two pieces are the gas.

When can lawyers contract out of taxation (part 3)

This is part 3 of a post about the circumstances in which lawyers can avoid having their fees taxed.  Parts 1 and 2 are here and here.  In GLS v Goodman Group Pty Ltd [2015] VSC 627, Macaulay J held that an accord and satisfaction which was found to have been made in relation to fees previously rendered for work already done was not a ‘costs agreement’ in the sense of that expression in the now-repealed but still operative Legal Profession Act 2004, so that the prohibitions on contracting out of taxation in costs agreements, and the writing requirements for costs agreements were not applicable.  His Honour distinguished Amirbeaggi and Jaha, discussed in the two previous posts, explaining that he was following Beba.

Justice Macaulay ruled: Continue reading “When can lawyers contract out of taxation (part 3)”

When can lawyers contract out of taxation? (part 2)

This is part 2 of a post about in what circumstances lawyers can avoid having their fees scrutinised by the Supreme Court by the process traditionally known as ‘taxation’, but more recently also described in statutes as ‘costs review’ and ‘costs assessment’.  Part 1 is here. First, a disclosure: I argued Beba at first instance, for the lawyers, and advised in the appeals.

In Beba Enterprises Limited v Gadens Lawyers [2013] VSCA 136, a borrower promised the lender to pay the lender’s legal costs if they defaulted.  Of course, they did default, and the lender demanded a sum which included an allowance for the lender’s legal fees occasioned by the default. The borrower and lender compromised their dispute, including in relation to the legal fees payable.  Nevertheless, the borrower sought taxation of the lender’s legal fees by issuing a summons for taxation addressed to Gadens Lawyers, the lender’s solicitors. Continue reading “When can lawyers contract out of taxation? (part 2)”

Wilson Security Guard says Wilson Security was waterboarding refugees on Nauru

I expressed my disgust in this post that the CIA set up secret dungeons in, for example, the outskirts of Bangkok, and then tortured people to death in joint ventures with dictators, lied about it, liaised with Hollywood in the making of a propaganda movie suggesting (falsely) that Bin Laden’s extra-judicial execution was possible only because of intelligence tortured out of people, and then determinedly undermined the US Senate’s Select Committee on Intelligence investigation, the great majority of whose report remains censored.

There was an excellent ‘4 Corners’ last week about America’s torture programme, which all lawyers in Australia should watch (it’s available here for a limited time).  It features extensive interviews with the CIA’s lawyer John Rizzo, who travelled to several of these illegal dungeons at the ‘black sites’ and reassured CIA operatives that the torture they were engaged in was perfectly legal.  If there is a question which it should be a cinch for any lawyer to answer otherwise than unequivocally negatively, it is ‘Is waterboarding torture?’ (The late Christopher Hitchens’s brilliant ‘Vanity Fair’ essay on the topic is here.  He tried it. But, as he pointed out in this television interview, the US already had a position on the question, having several times sought the death penalty for the waterboarding of American troops).  It also discloses the enormous amounts of money paid to two psychologists who shambolically masterminded the torture (Shame!). One also gets to see and hear the Senate Committee’s Dianne Feinstein, the Democrat and former Mayor of San Francisco (pictured) who was at the forefront of her Committee’s dogedness in uncovering the truth about the CIA’s torture, its incompetence, and its uselesness.  I was so pleased to hear that, like me, she walked out of Zero Dark Thirty during its opening torture scenes.

Now an apparently thoroughly respectable Australian named John Nicholls who used to work in the concentration camp up on Nauru has given evidence to an Australian Senate enquiry into abuses on Nauru that Wilson Security Guards employed by the government tortured refugees by waterboarding them.  Continue reading “Wilson Security Guard says Wilson Security was waterboarding refugees on Nauru”

Lawchestra’s third concert: an afternoon at the opera; Robert Dora’s Symphony to an ANZAC

The Lawchestra is holding its third major concert.  To recap, we played a symphony and some other straight orchestral pieces in the first, and nailed it.  Then we played an ambitious programme centred on a beautiful performance of Rachmaninov’s second piano concerto by Natasha Lin.  Now, we’ve teamed up with the Opera Studio of Melbourne, an elite training ground for future opera stars, to bring you the entertaining bits from the vast world of opera.  Please do come (more below).  Book here or, if you have no sympathy for the organisers who need the reassurance of advance ticket sales, pay at the door.

And there’s another thing.  Our wonderful conductor, Robert Dora, has composed a symphony (‘Symphony to an ANZAC’).  One of his other orchestras gave it its world premiere the other weekend and it will be broadcast between 11 a.m. and noon on ANZAC Day on 3MBS. I’ll be listening.  You can hear a snippet here.  Performances of new symphonies composed in Melbourne are a rarity.  And this one is approachable and wonderful: tonal, brooding, Shostakovichesque Continue reading “Lawchestra’s third concert: an afternoon at the opera; Robert Dora’s Symphony to an ANZAC”

2014: not such a great year (offshore imprisonment of people who are not alleged to have done anything wrong, far away from journalists and Human Rights Commissioners)

I have already covered the 2014 exploits of the Minister for Making Refugees Disappear vis-a-vis, especially, the poor Tamils. As I write, dreadful scenes are playing out in one of the regional Australian centres for the infliction of misery where we imprison people without the slightest involvement of the judiciary who have done not the slightest legal wrong in conditions of the utmost secrecy justified by a ‘war’ which is not a real war.  Wonder where we got that model from!

There are advantages in having private contractors at the beck and call of the Minister for Making Refugees Disappear do the dirty on the poor bastards fleeing terror and horror in an extra-territorial malaria-infested island in a desperately poor nation where violent thugs who don’t like gay or sub-continental or middle eastern refugees much abound.  For example, the Solicitor-General advised the government that Gillian Triggs, Chair of the government’s own Human Rights Commission, and Emeritus Professor at the University of Sydney, cannot investigate complaints about the trashing by Australians of the human rights of poor bastards going mad in sub-standard jails staffed by private security guards instead of public servants.  There was no rush that I heard about to plug this alarming alleged loophole in her governing statute.

2014 saw MP Andrew Wilkie ask the International Criminal Court to investigate Tony Abbott and Scott Morrison and in fact the whole cabinet for crimes against international law in their treatment of refugees.  I have no idea what the outcome of that was.

Reza Berati was killed — murdered in all likelihood — on Manus Island.   Continue reading “2014: not such a great year (offshore imprisonment of people who are not alleged to have done anything wrong, far away from journalists and Human Rights Commissioners)”

2014: not such a great year (planes, boats, Sri Lanka)

It felt like it was surely the worst year ever for plane crashes.  In fact, many more civilians used to die in aviation disasters each year for a long time, and the figures were even less dramatic when expressed as passenger deaths per million flights. 2014 was actually the year in which there were the fewest fatal civilian passenger airline crashes even though more than 1000 people perished. But planes do not generally go missing, never to be found.  And nice countries like Russia don’t generally shoot them down either, so it was all certainly newsworthy.

Just weeks ago, an Air Asia flight crashed into the sea in Indonesia with 162 people on board.  We will come to the crashes in Ukraine and Algeria later on. Early on in 2014, a Malaysian Airlines plane carrying 239 people  disappeared without a trace.  What to make of the fact that the pilot’s wife reportedly moved out with their children the day before, and that he did not make any social or professional plans for after the flight? the world’s people wondered in an orgy of circumstantial reasoning which never really went anywhere.

In fact, there was a precedent in 2014 for pilots doing strange things. An unarmed co-pilot locked the pilot out of the cockpit while he was taking a leak and diverted an Ethiopian Airlines flight scheduled from Addis to Rome so as to land in Geneva where he sought political asylum.  I can understand why a man might want to get out of the economic proto-powerhouse Ethiopia is becoming 30 years after the famine (it imports 10 million litres of wine): dissidents are not tolerated. But why not just get out in Rome, and seek asylum there, avoiding the likely 20 years in jail for hijacking? Continue reading “2014: not such a great year (planes, boats, Sri Lanka)”

National Costs Lawyers’ Conference: you’re invited

I’m speaking on Friday at the National Costs Lawyers Conference in Melbourne.  My topic is the civil and disciplinary consequences of making serious allegations without an adequate factual foundation.  Obviously, some of those consequences include costs orders.  The Civil Procedure Act 2010 (Vic) takes things further than the obligations imposed on lawyers previously and provides a smorgasbord of hitherto unexplored remedial powers to trial judges and the Costs Court alike.  The new solicitors’ conduct rules which are on their way to Victoria will extend solicitors’ obligations too in small but important ways. Think ‘allegations’ rather than ‘serious allegations’, in fact these days.

$450 gets you 6 CPD points across four categories including (thanks to me) ethics, some lunch and some wine. But you wouldn’t pay all that money just to hear me.  You’d pay it to hear the Supreme Court’s Justice Croft give the keynote address, Dr Sue McNicol SC talk about legal professional privilege in taxations (I’m so waiting to have her authoritatively sort out this hoary chestnut for me), Federal Court Registrars Pringle and Burns on party-party taxations in the Federal Court, a psychologist on professional wellbeing and a panel including Cate Dealehr and two eminent interstate costs lawyers updating delegates on recent cases on costs disclosure and costs agreements.

NSWSC summarises advocates’ immunity in one paragraph

In Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510, a judge of NSW’s Supreme Court decided to summarise the law of advocates’ immunity in one paragraph:

An advocate cannot be sued by his or her client for negligence in the conduct of a case, or for work performed out of court that is intimately connected with the conduct of a case in court. Where a legal practitioner gives advice that leads to a decision that affects the conduct of the case in court, the practitioner cannot be sued for negligence on that account. The immunity extends to work done out of court that leads to a decision affecting the conduct of the case in court. Neither a barrister nor a solicitor may be sued by a client in respect of any conduct in the making of preliminary decisions affecting the way in which the case is to be conducted when it comes to a hearing. The immunity applies to the conduct of a solicitor as well as a barrister if the conduct otherwise qualifies for immunity. There is no difference between instructions given based upon negligent advice and the negligent carrying out of instructions if both are intimately connected to the conduct of the litigation. Advice in relation to the settlement of proceedings that leads to a settlement of a matter during the hearing falls squarely within conduct protected by the immunity. Advice that leads to a settlement prior to a hearing is also covered, whether or not court orders are made.

Ron Baker: Firms of the Future

An American by the name of Ron Baker is coming to town. I am certain I have never seen a mission statement with such a resolutely split infinitive as Baker’s: ‘To, once and for all, bury the billable hour and timesheet in the professions.’  He is a leading exponent of ‘value pricing’, who’s moved out of the accounting world whence he hails into the legal arena.  He has written what are said to be some of the best books on the subject.

Our foremost indigenous enthusiast for the same philosophy, John Chisholm, is quite the disciple, and is helping to publicise Baker’s ‘Firms of the Future’ forums which will feature value pricing heavily, but will predict other aspects of best firm practice.  At this point in my journey towards understanding what Baker’s on about, it is easier to point to what value pricing is not.  As the mission statement suggests, it is not recording time on timesheets and then arriving at a charge by reference to the hourly rates of the fee earners.  It is agreeing a price for the work at the start, and it involves moving away from arriving at that price principally by reference to the time it is going to take.  Baker is speaking for a day in Melbourne on 5 March 2012 — I’ll be going, briefs permitting — and conducting a half day masterclass at the MCG the following day. (Hobart = 2nd, Brisbane = 12th, Sydney = 15th).  To go, you have to pay $1,628, or $935 for just the talk or $880 for just the masterclass, but if you’re not completely satisfied, you can ask for a refund of the difference between what you paid and what you think it was worth, a version of value pricing I suppose.

 

Shareholder class actions: resources

I wrote a paper on the reception of a causation presumption employed in American securities class actions, the fraud on the market doctrine.  Since no shareholder class action has gone to judgment in Australia, how the difficult issues associated with causation in these kinds of cases will be treated remains to be worked out.  In contrast to the dearth of authority, there is a surfeit of academic speculation.  There are a number of useful resources which are either recent or may not be well known in Australia:

  • A collection of conference papers published as K E Lindgren (ed) Investor Class Actions (2009) see this page;
  • (2009) 32(3) University of New South Wales Law Journal which contains 12 articles on class actions, including several entirely or partly devoted to causation questions;
  • Nera Economic Consulting’s website, with numerous reports on the state of securities class actions in America.
  • Stanford Securities Class Action Clearing House, which aggregates writing on the subject.
  • Professor Morabito’s first two reports on Australian class actions: one, two.
  • The D&O Diary blog.
  • And The 10b-5 Daily blog.

The full bibliography for my paper is reproduced below. Continue reading “Shareholder class actions: resources”

How to prove postage

I had a case not so long ago which might have but did not turn on whether a solicitor’s evidence that he posted a letter was sufficient to prove that.  The same question on much the same evidence arose in Rashed v Perpetual Trustees Victoria Ltd [2010] FCA 1046.  Justice Gray did not need to decide the question, but seemed to have grave doubts about whether the evidence proved postage, saying at [6]ff (despite the numbering below): Continue reading “How to prove postage”

For sale: evidence texts

I want to sell this text, the current edition published in 2009, for $100 including postage within Australia, or $95 picked up from my chambers.  It sells at the Law Institute Library for $130.50.  I bought this one and then they put out a Victorian edition the purchase of which I hope to fund by the sale of this pan-Australian edition.  Nevertheless, this red and black edition contains commentary on Victoria’s Evidence Act, 2008.

Also for sale:

Andrew Palmer, Proof and the Preparation of Trials (a brilliant book).  I plan to put the proceeds of the sale of this first edition, which sells at the Law Institute Library for $78 towards the purchase of the second.  The publisher’s spiel about the second edition, which is much like the first, is here.

and

Jeremy Gans and Andrew Palmer, Australian Principles of Evidence, undoubtedly the best starting point for the study of the law of evidence in Australia, for anyone wanting a broader perspective than only the uniform evidence law.

Whoever offers the most within the next 7 days can have the Palmer books, or either of them, so long as the offer is more than my secret reserve.

‘Aggravated homosexuality’ to be punishable by death

Here is a link to Uganda’s Anti-Homosexuality Bill, 2009. It is proposed that:

  • men who have sex with other men ‘serially’ are to ‘suffer death’;
  • it would be a crime to rent a house to a gay;
  • a woman who touches another woman with a view to seducing her will suffer life imprisonment; and
  • speech in favour of homosexuality will attract a sentence of imprisonment for seven years.

There are obviously some seriously sick puppies at work in the Ugandan government.  Mind you, it seems as though it’s principally the brainchild of a born again Christian MP. It’s a pity, because Uganda was once a pretty cool African nation, before and after Idi Amin.   Now it’s the kind of place where torture is widespread, opposition leaders get arrested, their show trials get stormed by heavily armed government thugs, and 20,000 children have been abducted to work as child soldiers and slaves, forcing many of the rest in the North to leave their villages every evening to sleep in the forest, churches or schools — the ‘night commuters‘ fleeing the Lord’s Resistance Army.  More information  on the bill here.

Twenty-seven year old proceeding dismissed for want of prosecution

Do things move slowly in Western Australia?  I wrote about an estate matter which went on and on and on here.  Now a twenty-seven year old proceeding, which came to have as one of its defendants a famous QC has been dismissed for want of prosecution and the decision confirmed on appeal: Smith v Bank of Western Australia [2010] WASCA 15.  The QC investigated Moira Rayner, and defended the QC disciplined for having taken to the media during the course of the Schapelle Corby saga.  Anyone know of a proceeding which has been on foot for longer?

Is there a principle of construction presuming simple interest in the absence of specification?

Several times I have wondered, in my short career so far, whether a loan or other commercial agreement which provides for interest at a particular rate should be construed as providing for simple or compound interest.  My presumption has been that such a provision would be interpreted to provide for simple interest unless compound interest is specified.  Surprisingly, that is not the law; there is no presumption.  The question is to be resolved by reference to orthodox principles of ascertaining the parties’ intentions without resort to presumptions of law.  In Decorrado v Manoukian [2009] VSC 451, Justice Vickery explained the law, and applied it as follows: Continue reading “Is there a principle of construction presuming simple interest in the absence of specification?”