Archive for the ‘Australia’ Category

David Rolph, “Corporations’ Right to Sue for Defamation: An Australian Perspective”

October 6, 2011

David Rolph (University of Sydney – Faculty of Law) has posted “Corporations’ Right to Sue for Defamation: An Australian Perspective”, Entertainment Law Review, Vol. 22, pp. 195-200, 2011/Sydney Law School Research Paper No. 11/51. Here is the abstract:

As the United Kingdom undergoes defamation law reform, it might be useful to consider recent Australian developments. Across Australia, since 2006, corporations have had the right to sue for defamation severely curtailed. After five years of operation, it is possible to make an assessment of the advantages and disadvantages of this reform. This article analyses recent cases in which corporations have been forced to rely on alternative causes of action, which previously would have been dealt with as defamation claims. It argues that the reform is sound as a matter of principle and policy but that the particular form of the legislative provision requires refinement. In addition, this article points out that there have been unintended and undesirable consequences to this reform.

Download a copy of the paper via SSRN here.

J.J. Spigelman, “Proof of Foreign Law by Reference to the Foreign Court”

April 26, 2011

Proof of foreign law by legal experts is both time-consuming and expensive.

James Spigelman

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The Honourable James Jacob Spigelman, AC (Supreme Court of New South Wales) proposes a novel approach through bi-lateral judicial cooperation in his article, “Proof of Foreign Law by Reference to the Foreign Court” , Law Quarterly Review, Vol. 127, p. 208, 2011 (subscription required).

Here is the abstract:

The traditional means by which a question of foreign law is answered is by use of expert evidence. The inadequacies of this mechanism have been frequently identified: experts are expensive, difficult to procure, of various levels of expertise and are frequently partisan. The problems of determine a question of foreign law using expert evidence are particularly acute where a trial judge is required to determine a novel question in the foreign jurisprudence and two experts, of equal standing and persuasiveness, reach entirely different conclusions. This paper sets out an innovative mechanism that has been adopted in New South Wales, whereby a question of foreign law may be referred to a foreign court for determination. In addition to adopting rules of court allowing such references to be made, the Supreme Court of New South Wales has entered into a memorandum of understanding with the Supreme Court of Singapore whereby each agrees to give consideration to referring a matter of foreign law to the other jurisdiction for determination. Similarly, the Chief Justice of NSW has entered into a memorandum of understanding with the Chief Judge of New York, whereby the latter has undertaken to appoint a standing panel of five volunteer judges from New York appellate courts whom, acting in a voluntary capacity, will answer a question of law referred to them by the Australian court. This paper discusses the history of referrals between foreign courts, the constitutional validity and practical operation of such a mechanism, and the circumstances in which such a referral would be suitable.

For more information, see also: MoU Between The Chief Justice Of New South Wales And The Chief Judge Of The State Of New York On References Of Questions Of Law via the NSW Supreme Court’s website.

H/T: James McComish at conflictoflaws.net.

Is Free Speech Priceless or Worthless?

March 6, 2011

I was interviewed by a Canadian Press journalist last week by phone about the impact of social media in the courtroom. This got me thinking about a few issues that affect not only journalists and lawyers, but the public at large. The ability to speak freely about matters of public concern is considered a cornerstone of a free and democratic society. Just ask any protester in Libya today how much free speech was tolerated the last 42 years of Gaddafi’s military dictatorship.

Then again, not all free speech is created equal. There are limits to what an individual may say or disclose to the public—both Julian Assange and Bradley Manning typify the balance between the right to know and the need to know. For those who are more interested in the need to know more, you’re in the wrong place, move along, nothing to see here. Tell Charlie Sheen to get some professional help.

Freedom of the press and freedom of speech are not universally protected, but there is a discernible trend emerging.  Chris Merritt of The Australian writes today about a proposed federal shield law for journalistic sources which extends protection beyond traditional news media: (more…)

WikiLeaks lawyer vows to prosecute Palin if she goes to Australia: NPR

January 22, 2011
In WikiLeaks’ Assange Finds Support In Native Australia,   Anthony Kuhn at NPR.com reports:

On her Facebook page, Palin suggests that Assange should be “pursued with the same urgency as al-Qaida and Taliban leaders.”

Anyone who incites others to commit violence against his client, even outside Australia, Stary says, is violating Australian law, and can be held accountable for it.

“Certainly if Sarah Palin or any of those other politicians come to Australia, for whatever purpose, then we can initiate a private prosecution, and that’s what we intend to do,” Stary said.

“On her Facebook page, Palin suggests that Assange should be “pursued with the same urgency as al-Qaida and Taliban leaders.”

Anyone who incites others to commit violence against his client, even outside Australia, Stary says, is violating Australian law, and can be held accountable for it.

“Certainly if Sarah Palin or any of those other politicians come to Australia, for whatever purpose, then we can initiate a private prosecution, and that’s what we intend to do,” Stary said.”

See also: WikiLeaks lawyer vows to prosecute Palin if she goes to Australia: Alaska Newsreader | adn.com.

According to the  Office of the Commonwealth Director of Public Prosecutions, in a submission to the Australian Law Reform Committee Inquiry into Vexatious Litigants:

I wonder if there will be any diplomatic cables exchanged between the U.S. Department of State and the Australian Department of Foreign Affairs and Trade discussing Sarah Palin?

Interesting Law Journal Article posted on SSRN by Lisa Spagnolo about Australia’s experience with the CISG

August 13, 2009
Lisa Spagnolo (Faculty of Law, Monash University) has recently posted an interesting law journal article on SSRN about Australia’s experience with the CISG entitled: “The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian Lawyers”

Here is the abstract:

Australian lawyers and courts have tried long and hard to ignore the CISG. However, this article argues that widespread exclusion of the CISG and its misapplication in Australian courts has had serious consequences: clients have been disadvantaged, professional obligations have been heavily glossed over, the administration of justice has been compromised, and client costs and judicial resources wasted. This article points out that CISG cases are disseminated and analysed throughout the world, and Australian misapplication of the CISG has not gone unnoticed. This reflects upon the reputation of the Australian legal profession, Australian courts, and Australia’s viability as a location for international dispute resolution. It is argued that, while other jurisdictions are improving their track records, Australia still lags behind.

Why Australian lawyers should not routinely exclude the CISG is explained through its advantages and an outline of its provisions. The article provides arguments that barristers could run in future, references numerous freely available resources, and gives courts and awyers guidance on the CISG’s unique interpretive methodology and its effect in displacing local laws, both key elements in its proper application. It is argued that if Australian lawyers and courts do not rise to the challenge, Australia will be left behind as an outpost of CISG ignorance.

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