Ippster's Stella performance
Monday, June 21, 2004
Justinian in Déjà Vu, Goings On ...

David Ipp's wonky wake-up call to anaesthetists ... Deputy registrar's deadweights ... Nettle and the Hollingworth case ... AG's historic library being dismembered ... Somosi’s imputations flop ... By appointment to the Viceroy of Tasmania ... (Spud) Murphy's bail application runs off at the mouth ... From Justinian's archive, June 2004 

David Ipp: illustrating the point

JUSTICE David Ipp got pinged on Media Watch (June 14) over a speech he gave last month to a Perth jamboree of Australian and New Zealand anaesthetists in which he cited confabulated examples of court cases to illustrate his point. 

His theme was about finding the correct balance between citizens taking personal responsibility for their actions, on the one hand and, on the other, a society where the state has only a limited role in protecting poor sods from the rapacity of capitalism. 

The Ippster declared that the judiciary is well aware of the need to establish a new equilibrium. 

He commenced by giving examples where courts awarded damages to plaintiffs without paying any regard to the concept of personal responsibility: 

"Each year there appears on the internet a list of the Stella Awards. The Stellas are named after Stella Liebeck who spilled coffee on herself while eating a hamburger. She sued McDonalds and successfully recovered a large sum of damages. 

Last years winners of the Stellas included 19-year old Karl Truman of Los Angeles who won $74,000 and medical expenses when his neighbour ran over his hand with a Honda Accord. Mr Truman apparently did not notice that there was someone at the wheel of the car when he was trying to steal the hubcaps. 

Another winner was Kathleen Robertson of Austin, Texas, who was awarded $780,000 by a jury after breaking her ankle and tripping over a toddler who was running amuck inside a furniture store. The owners of the store were understandably surprised at the verdict, considering that the misbehaving little fellow was Ms. Robertson's son. 

"There are ample cases in Australia that illustrate the same point." 

The only problem is, apart from the example of Stella Liebeck herself, the other instances he cited are all bogus.

The Ippster couldn't have done too much research because on the Stella Awards site itself the two extra examples he gave are listed as fraudulent stories that have been circulating wildly on the internet. 

The judge has lifted them word for word from a hoaxer. 

See: stellaawards.com/bogus 

TruthOrFiction, which claims to have "checked court records and news archives", says it has not found any documentation vouching for the truth of these stories. 

Failure to conduct proper research, plagiarism, and inaccuracy. Not bad for one speech.

The Ippster responded to Media Watch saying he had no idea about all this but that citing these false stories made "no difference, it was an illustration of a point". 

*   *   *

YOLANDE Dubow, Deputy Registrar of the Supreme Court of NSW, has more than the usual amount of time on her paws at the moment, what with being put on light duties owing to disputes with the court's administration.

She fills it painting her fingernails bright pink with diamantes and working out at the gym.

Imagine her surprise to get the following letter from the gym's legal counsel, Peter Elliott, acting on behalf of Fitness First (motto: Be yourself only better):

"We note that you regularly attend the Body Pump classes at our Bond Street club and that you drop weights to the floor throughout those classes. The dropping of weights to the floor causes: 

  1. disturbance and distress to others in the class;
  2. damage to the flooring in the aerobics studio.

Please be advised that we require this behaviour to cease immediately.

You should be aware that we have the right under the terms of our membership agreement to terminate your membership for behaviour which we deem to be inappropriate and we do deem this behaviour as inappropriate.

Should you continue to drop weights to the floor during Body Pump classes, your membership will be terminated.

Further, should any damage be caused to the flooring in the aerobics studio as a result of you dropping weights to the floor, we will hold you responsible for the cost of repairing the damaged flooring. 

If you wish to discuss any aspect of this matter, please refer your inquiry to Yasmin Saunders.

Yours faithfully,
Peter Elliott
Legal Counsel" 

Ms Dubow's reply cannot be published in a family friendly organ such as Justinian

*   *   *

IT'S pleasing that wunderkind Justice Geoffrey Nettle, 53, has been elevated to the Victorian Court of Appeal.

Among other things he is remembered for the suppression order that temporarily kept Governor General Peter Hollingworth's name out of the tissues after proceedings were commenced by Rosemarie Annie Jarmyn against the Bishop of Ballarat. 

On February 20, 2003 in camera Nettle suppressed the name of the plaintiff.

On March 18, 2003 he suppressed the name of the third defendant, Dr Hollingworth. 

On May 8, 2003 Bernard Bongiorno J revoked the orders and so the file was no longer confidential.

Later than month Bongiorno mentioned that the by now deceased plaintiff's affidavit did "include a discrete allegation of common law rape against the third defendant, the present Governor General of Australia and former Anglican Archbishop of Brisbane".

Up to that point as a result of Nettle's orders the Governor General had been shielded by the initials "AB". 

As the allegation could never be proved Julian Burnside for the plaintiff's family "unequivocally abandoned" the claim. The proceedings against the defendants were dismissed. 

Who can forget those unhappy times? 

Fortuitously, Nettle was replaced on the Supreme Court by the brilliant Rhodes scholar from the Uni of WA, Elizabeth Hollingworth, 42, (no relation). 

*   *   *

THE NSW Attorney General's Department is closing down its historic and priceless library - all in the name of saving a few lousy bob. 

Of course, it says it is not closing it down, rather "relocating" it to other libraries under the AG's umbrella. 

Importantly the "relocation" liberates a whole floor of the Goodsell Building in Chifley Square, which could command an attractive commercial rent if the department was so minded. 

The departmental powers that be are not overly fussed about collections of books and all that sort of thing, believing anything that is needed can be found on the internet and that libraries are obsolete. 

However, the AG's library is a treasure trove of historical legislative records with a great criminology collection.

The DPP's people use it extensively. 

The dismemberment or "relocation" means things will never be the same again. Parts of it are being distributed to the Drowning Centre and bits to other agencies. 

In the meantime, the loudly trumpeted CourtLink system is costing the department an arm and a leg and not going anywhere fast, or even slowly.

It is meant to connect the profession to the court system so that filings can be done electronically and the progress of cases monitored at the click of a mouse. 

The teething problems for what is a brave and bold enterprise are daunting. 

*   *   *

DEFROCKED barrister Bob Somosi is having such a beastly time getting his defamation action against Fairfax off the ground. 

The NSW Court of Appeal (Mason P, Sheller JA and Stein AJA) has dismissed (with costs) Somosi's application for leave to appeal against Justice David Levine's rejection of all five imputations pleaded over an article in The Sydney Morning Herald

The story appeared on September 3, 2002, at a time when the Harley-loving Hungarian was in a spot of bother with the ATO and the Bar & Grill (not to mention his estranged wife). 

The newspaper reported on the life sentence imposed on one of Somosi's clients, a drug lord by the name of Mr Wing Chung, ostensibly while Somosi himself was tooling up the freeway to Byron Bay's East Coast Blues & Roots Festival. 

In November 2003, Justice Levine found that the imputations pleaded amounted to not much more than: "Had I been there Mr Wing Chung would not have received a life sentence."

None of the imputations were capable of conveying that fundamental proposition. 

During the appeal application, counsel for Somosi, the venerable Clive Evatt conceded "various flaws in the way the imputations were drafted". 

The appeal judges allowed him another crack at amending them, noting that "the ordinary reader of newspaper articles does not read them in the way a lawyer would". 

Ain't that true.

*   *   *

NO sign at all of the legal advice that Little Johnnie promised would be whipped up by the PM's department about Fruity Flint's lapses of taste, let alone judgment. 

Howard sought an opinion on Fruity's love letters to Alan (Dunny) Jones AO and his forgetfulness about disclosing them to the ABA board during the 1999 cash for comment inquiry. 

Mysteriously, it has been a laborious process although one would have thought it should not be too gruelling to arrive at the correct legal conclusion.

Fruity's departure from the chairmanship of the ABA renders the advice superfluous. Still, it might have been amusing to have seen which way the PM's lawyers jumped. 

*   *   *

Butler: distressed at media inquiries

I WAS excited to see the esteemed Sydney law shop of M. Rosenblum & Co shifting from its traditional field of property and mortgage lending work to media law. 

Acting on behalf of Viscount Butler, the Viceroy of Tasmania, the firm wrote to The Sunday Age expressing His Excellency's distress that journalist Peter Wilmoth had been sniffing around Hobart collecting tittle-tattle about the great man. 

Wilmoth had been granted a two hour audience with the Viceroy for a Sunday Age feature.

It was marvellous story in which His Excellency addressed a variety of misunderstandings that might have left people with an unattractive impression of him. 

See: The Sunday Age, Serving time 

After the interview, but before publication, the newspaper received Rupert Rosenblum's warning letter, saying he was writing on the Governor's instructions:

"Since the conversation you had with him, our client has received reports about the methods and types of some of the inquiries you have been carrying out in Tasmania." 

Wilmoth is accused of pursuing "gossip and insignificant trivia" during the interview - which is actually what journalists call "research". 

As Wilmoth said:

"[Rosenblum] is referring to the same material which Butler conceded had dogged his first eight months in the role, caused him and his wife stress and unhappiness, and which he seemed keen to address." 

*   *   *

Murphy: cut and paste, Your Worship

DOESN'T Chris (Spud) Murphy rabbit on and on and on? 

In securing bail for Bilal Khazal, the former Qantas baggage handler charged with making a document connected with terrorism, Spud drowned Magistrate Leslie Brennan in a torrent of verbiage.

I won't subject you to the lot, but here's some of the flavour of Murph in full throttle: 

"It's alleged that he did a cut and paste of a book and put it on a website. That's it. Nothing. No-one saying he committed a terrorist act, no-one saying he has ever threatened anyone, never assaulted anyone, couldn't be more closely examined and followed, couldn't get a taxi from Lakemba to Campsie without being noticed, would assume that his phones and his home and his life is examined.

He leads a quiet religious life, he goes to the mosque once, twice every day and he holds views and he sits here.

It might be hard for us to see it through Anglo or Christian eyes but he sits here poised as a milestone [?] and an important landmark case in how we prosecute people, because the strongest thing he's got is a point of view.

He's cut and pasted political views out of three different websites and pasted them on a website and someone here from the police has said you mightn't be able to do that and he has immediately had it removed. That happened months ago. Why are we here today? What's the party? Whose other interest is at stake? How minor his situation? 

The man last week who appeared before the Supreme Court was supposed to have joined a terrorist organisation for terrorist training. Where do we fit in here with a cut and paste man?

Do we put him in a line behind the people who look at the dirty websites or do we put him near the pornographers or do we put him near the right-wingers or the left-wingers? Because what this man has done in this particular situation here your Worship in terms of his behaviour is nothing that presents a threat.

If all they can get from taking his computers, examining his life and putting him under the microscope is you did a cut and paste from these three fellows and you put it on a website a few months ago and we asked you to take it off and you did and they knew by reasons I can't disclose in this court that he'd put it there, took it away, removed it himself and that he had the document at home.

When it's called a book, it's like this, what's this, the terrorist – CIA improvised sabotage devices, that teaches you how to make really good bombs at home. 

HIS HONOUR: How about we move along a bit? You've been on there for some ... 

MURPHY: The point I'm getting to here, your Worship, you've got to put this in sequence of events because you don't - this is a case in which there's a presumption in favour of bail. 

This is a very bad thing that happens to this man if you take his liberty off him. You're taking him away from his wife and his two little children. He's out there at Lakemba, everyone knows where he lives, he's lived there for five years at the current address, and he's lived at Lakemba something like 17 years. He's prepared to report if that's required to the Lakemba police station. He's not doing any harm to anyone. Your Worship, this is a littley that they're trying to put a big load on the back of, this is not a big case, this is a little case.

If, for example, I take my how to make a bomb, my three methods I've got here and put it on a website, then you want to come before a court who will say you're going to get 15 years gaol for the cut and paste, who would ever believe that, your Worship?"

All the blah, blah seemed to work. Bilal got bail.

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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