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    « News from the QE11 Cauldron | Main | The guano flies as rule of law abused in client states »
    Tuesday
    Jul222014

    Court room calamities

    Solicitors struck down in the Defamation Court ... Who's going to replace Reg Blanch at the NSW Dizzo? ... Garry Neilson benched after pressure from AG ... Knock About Carmody seeking speech-writing skills ... Daphnis lost west of Winton 

    THERE has been little joy for plaintiff solicitors in the defamation court. 

    Judge Judy Gibson in the NSW Dizzo has tossed out defamation claims from Sydney practitioner Michael Foley and from Wollongong lawyer Vincent Stanizzo. 

    It's a bit tragic if lawyers can't get to first base with their own defo cases. 

    Foley asked Judge Judy for an extension of time to serve his statement of claim against former client Caroline Rosier; leave to withdraw his claim for defamation and to amend it to injurious falsehood and misleading and deceptive conduct; and to transfer the case to the Local Court on the basis that the damages are "now wholly within the small debts jurisdiction". 

    Foley was suing over publications by his ex-client to the Legal Services Commissioner. However, the commissioner pointed out to the plaintiff that complaints to his office attract absolute privilege - which rather spoiled the fun. 

    In any event the judge didn't think Foley should have an extension of time to serve his statement of claim which had been filed on April 7, saying : 

    "I am satisfied that the reasons for the delay are deliberate, rather than due to any uncertainty as to the defendant's whereabouts." 

    Foley acted for himself in this application, bringing to mind the old adage about having a fool for a client. 

    As to moving the case to the Local Court, Judge Judy pointed out that whether the damages claimed are within the jurisdictional limit is not the test required to determine the transfer. 

    Further, there must be doubt whether a complaint to the Legal Services Commissioner is made in the course of trade or commerce, while the complexities in a case of injurious falsehood are hardly suitable for the Local Court. 

    Proceedings dismissed. 

    See: Foley v Rosier  

    Stanizzo had no better fortune as his case was also summarily dismissed by Judge Gibson. 

    The plaintiff is a colourful Wollongong lawyer. He commenced defamation proceedings against beneficiaries of a will over what they had communicated to each other and to a solicitor during preparation for proceedings to have Stanizzo removed as an executor.  

    Stanizzio: fishing expedition

    Details were scarce because the conversations were unspecified, the publications to whom, when or where were not identified, and what was said remains unknown. 

    The plaintiff presumed the existence of these conversations by "working backwards" from the information in affidavits filed in the will case. 

    Sanizzo pleaded imputations that he had committed criminal offences, was a bully, took unfair advantage of his clients and is not a trustworthy person. 

    A plaintiff is entitled to commence defamation proceedings and then later apply for discovery or interrogatories. 

    However, Judge Gibson found that in this case the discovery or interrogatories sought from the defendants included outlines of their conversations, along with telephone calls, emails and letters. 

    The judge thought this rather smacked of an impermissible fishing expedition. 

    Absolute privilege also triumphed, again. Clearly, there was an immunity that extended to private communications for the purpose of preparing affidavits and people interviewed as potential witnesses. 

    Proceedings against a fifth defendant, solicitor Karen Garrett, are to be determined separately. 

    Case against the other defendants dismissed. 

    See: Stanizzo v Sassu  

    Stanizzo had better success in August last year when the DPP dropped a charge that he had sexually assaulted a female client.   

    *   *   *

    SO what's going on with the upcoming retirement of NSW Dizzo chief judge Reg Blanch? 

    Reg turns 72 on August 8, so he's out of there by August 7. Still, there's not a peep about his successor. 

    Checks last week revealed that Reg himself doesn't know who will be appointed CJ. 

    Former attorney general Greg Smith's announcement that he would not contest the next election brought on a momentary bout of speculation that he would be catapulted in as Dizzo CJ. 

    At 67 years of age, it would only give Smith five years in the saddle, so maybe his elderly status is against him. 

    No committee seems to have been formed to cull candidates or bounce names around. 

    Childrens Court boss Hanging Judge Johnstone was being groomed for great things by Little Laurie Glanfield, but since Laurie's departure as head of the AG's Department that suggestion has lost its wings. 

    Neilson: benched after intervention by the AG In an odd farewell gesture Blanch responded to a request from Attorney General Brad Hazzard and stood aside "incest" judge Garry Neilson. 

    Neilson is not sitting on crime following his remark that incest and paedophilia might not be the great taboos they once were. 

    His remarks appear to have been made during argument on the admissibility of evidence, but at this stage we don't know the context of his comments. 

    He is reported as saying that just as gay sex was socially unacceptable and criminal in the 1950s and 1960s but is now widely accepted, "a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now 'available', not having [a] sexual partner". 

    Garry topped it off by adding that the "only reason" that incest is still a crime is because of the high risk of genetic abnormalities in children born from consanguineous relationships "but even that falls away to an extent [because] there is such ease of contraception and readily access to abortion".

    There was must excitement in the media and AG Hazzard was "extremely concerned" to read these comments.  

    He asked Blanche to sideline Neilson, who is the third most senior judge on the Dizzo. 

    Instead of saying, "I make the decisions about whether a judge will sit on certain cases, or not", Reg went along with the AG's request.  

    Neilson has also been sent to the Judicial Commission to have his mouth washed out and be reeducated. 

    *   *   *

    THE new CJ of Queensland, Timbo (Knock About) Carmody, received a few applications for the position of associate. 

    Implicitly revealing what to him will be an important task, he set the young turks a test, asking them to write an essay as though it were a speech the chief justice might give to the Conveyancers Club or the Longreach Chamber of Commerce. 

    The associate to Daphnis de Jersey did not apply and instead has taken up as associate to the most junior judge on the court, Justice Peter (Flanas) Flanagan. 

    See: "Errors" needs more rest before he's fit to play  

    You can see that a bit of polish was required for the CJ's speech at his private welcome ceremony. Maybe a sparkling speech from Knock About's new associate will be ready in time for the Nudgee College Old Boys annual business breakfast, to be held on August 14 at the Victoria Park Golf Complex. 

    Carmody is a guest speaker, along with Lord Mayor Graham Quirk, with a "special introduction" from Chief Madge Ray Rinardo. 

    Roll up. 

    Paul & Kaye de Jersey: sacrifice in the name of public duty

    It was also uplifting to read an exclusive interview in The Bowen Hills Bugle with the just retired CJ.  

    Daphnis movingly revealed that he took a "500 percent pay cut" when he was appointed a judge at the age of 36. 

    Looking back, he thinks he was too young to go onto the bench. He had citizens acrooss the state sniffing in sympathy, as he said:

    "It was a big financial sacrifice for us; we had three children at private schools and we really only got through that thanks to Kay's preparedness to endure a quite dramatic change in lifestyle." 

    He was 49 when appointed chief justice. 

    "Generational change is what it was and I think now it's time for that to happen again." 

    Happily for the people of Queensland he's planning to be a people's Governor and communities across the state are bracing themselves for a vice-regal visit ... 

    "From the Torries Straight to Goondiwindi to Winton - I don't know what's west of Winton." 

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