Murder and madness Violence and the courts’ response was prominent as an issue, because it was an election year in Victoria, and so was racism because of the Minister for Making Refugees Disappear and other senior government people. I liked John Silverster’s end of year article which celebrated the fact that crimes were down 7% and 3,000 extra police were in training. A miserable law and order scare campaign ill-executed by state and federal Liberals ultimately bombed spectacularly when Dan Andrews stared it down. For example, the shadow Attorney-General John Pesutto lost the seat of Hawthorn to a retired school principal who does not drive, John Kennedy (not the Hawks legend of the same name, or the Hawks legend’s Hawks playing son of the same name) and the Liberals held Brighton (Brighton!) by only 865 votes against a late-announced 19 year old Labor candidate who also doesn’t drive and who spent $1,750 on his campaign. The newly elected Liberal member then surprised many by railing in his maiden speech against duck shooting and expounding environmental concerns more generally.Continue reading “2018: Not Such A Good Year (Marriage, Sex, Birth, Politics, Murder and Madness)”
Europe The peasants revolted in France, which seemed to take everyone by surprise. Seems President Macron’s honeymoon period, following his remarkable 2017 election, may be over. England thought about changing prime ministers but thought better of it, while it agonized over what sort of Brexit it should have, or whether they should vote on the whole thing again. New Caledonia finally had a referendum about whether to break away from France. Slightly more than half of those of the eligible voters who voted said ‘Non’, but they get to do it all over again in 2020, and maybe in 2022 too.Continue reading “2018: Not Such a Good Year (‘Great’ Powers)”
Africa Peaceful protests in 15 of Sudan’s 18 provinces against the kleptocracy of Omar al Bashir persisted in Sudan for 10 days, definitely about high prices and probably about three decades of corruption. He responded with police and army killings, beatings, tear gas, mass arrests and death squads, calling the protesters from all sectors of society including doctors ‘foreign stooges and infidels’, and throwing the opposition leader into jail for good measure. The President is a soldier who took power in a military coup, is indicted for genocide in Darfur by the International Criminal Court (the only serving head of state to have been charged with crimes against humanity), and is said to have US$9 billion in London banks. It sounds like the plot of a Sacha Baron Cohen movie. Unfortunately not.Continue reading “2018: Not Such a Good Year (Africa)”
Sport The third World Nomad Games in the Kyrgyz Republic were a great success.Continue reading “2018: Not Such a Good Year (Sport, the Arts)”
It was not a year of celebrity or otherwise notable deaths. The Grim Reaper must have saved them for a year sparse of spectacular executions by Trump buddies, which this year was not.
Aretha Franklin, the Queen of soul and a civil rights activist, and Stephen Hawking, both of whom lived amongst the stars, probably topped the international list of regular passings. Hawking was a great supporter of British Labor, of universal health care, nuclear disarmament, Al Gore’s presidential campaign, and anti-Brexit. He actively championed action against climate change.Continue reading “2018: Not Such a Good Year (Obituaries)”
Oh what a year for professional misconduct:
Michael Cohen President Pussygrabber’s lawyer and fixer, Michael Cohen, exposed incidentally by the Mueller investigation as an outright crook, was sentenced to three years in America’s particularly unpleasant slammers for (amongst other things) inexplicably paying off women who allegedly falsely claimed to have had extra-marital relations with the President, a violation of campaign finance laws. One of the women, ‘Stormy Daniels’, sued the President for defamation over one of his tweets ‘A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!’ She said it insinuated that she had lied about the man whom she sketched having threatened her against going public with her allegations. The President had the suit struck out under a law designed to protect against strategic lawsuits against public participation (SLAPP), the judge ruling that the tweet was ‘rhetorical hyperbole’ protected by the first amendment. Ms Daniels is to pay the President’s legal fees (the claim was for 580 hours at up to US$840 per hour) fixed at nearly US$300,000.
Brett Kavanough The misconduct against Judge Brett Kavanough must not have been established to the satisfaction of the senate committee which confirmed President Pussygrabber’s nomination of the arch-conservative whose appointment imperils Roe v Wade. The hearing was excruciating in its hopelessness (highlights here); senators have no idea how to cross-examine.Continue reading “2018: Not Such a Good Year (Professional Misconduct)”
If you want to read a real journalist’s wrap of The Year, see The Age here, another from The Age here, 7:30’s, the Saturday Paper’s here, or for a cheerier wrap, see The Guardian’s Brigid Delaney here. And this New York Times wrap of the year in photojournalism is great. I must acknowledge the heavy debt of what follows to Wikipedia, without which extraordinary resource much of which follows could not have been written by me.
Me, myself I had a lovely year, though I must be getting old: a child from my reader’s course became a QC (congratulations Dr Button QC); a kid below me at school is the Dean of Law at the University of Singapore (Professor Simon Chesterman); a youth I used to have morning tea with in Law School, Professor Carolyn Evans, is already an ex-Dean of the Melbourne Law School; her boyish husband who was admittedly quite good at mooting is the Solicitor General of Australia (Stephen Donahue QC); my body got grumpy.Continue reading “2018: Not Such A Good Year (Me, War, Terror)”
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)”
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.
Justice Macaulay ruled: Continue reading “When can lawyers contract out of taxation (part 3)”
In Beba Enterprises Limited v Gadens Lawyers  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)”
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”
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”
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)”
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)”
$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.
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.
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.
- 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”