Old news

Book week ... Pre-publication lawyering in book world ... Who pays if things go wrong? ... DPP nails registrar of the Van Diemen's Supremes ... Bits fall out a big damages judgment ... Judicial promotion ... Theodora reports from June 21, 2000  

Random recovery  

Random House Australia is seeking to recover from Minter Ellison in Melbourne some of the $277,500 in damages and $500,000 in costs shelled out for the abortive defence of the Abbott and Costello defamation case. 

The expensive disaster arose from publication of the rantings of Bob Ellis in Goodbye Jerusalem.  

Minters legalled the Ellis book before publication and Random is now saying the law firm should make a claim on its PI insurers and pay for some of the aggravation and expense. 

Juliet Rodgers, the managing director of the publishing house, told us that the matter was still in the hands of lawyers, somewhere in the pipeline. 

Meanwhile, where does that leave Phillips Fox, the current lawyers for the unfortunate publisher? 

Random's more recent work Waterfront by Anne Davies and Helen Trinca, was launched in Sydney by Julian Burnside QC. 

The book had been legalled by Richard Potter of Phillips Fox, Sydney (as he then was). Indeed, in the wake of the Goodbye Jerusalem experience the pre-publication legal work was of an unprecedented scale and intensity. 

However, within days of the publication of Waterfront a member of Federal Treasurer Peter Costello's staff was on the blower over a sentence that referred to an episode in the 1996 election campaign. 

The book mentioned letters dealing with the impact of the Coalition's funding plans for the States. The Labor Treasurer, Ralph Willis, tried to make political capital with these letters, only to find they were "fake". 

The book claimed they had been "concocted by a person working in Costello's election office. The forger lost his job, but the real damage was to Willis ..." 

Random, having been bitten by Costello and his wife Tanya once, immediately suggested an erratum slip. Not acceptable, was the reply. A good pulping was what was required. 

So will Random also ask Phillips Fox to cough-up for the costs involved in this exercise to keep Mr Costello's saintly reputation intact? 

Potter could say this was a factual error for whose provenance he cannot be held responsible. It was quite unlike the "mistake" in Goodbye Jerusalem which involved a theory about the saintly Tanya Costello converting Peter and the Mad Monk, Tony Abbott, to the Liberal cause after frottage.  

Supreme Court Registrar is guilty 

Some of the DPPs bear their responsibilities with grim determination. 

Take young Tim Ellis, the Tasmanian Director of Public Prosecutions. He took over from Damian Bugg when he was elevated to the task of Commonwealth DPP. 

Ellis has had no less than the Registrar of the Taswegian Supreme Court in the dock, charged with contumelious breaches of the Youth Justice Act. 

The Act says no one shall publish any details about a person under 17 years of age arising from court proceedings. 

The Registrar, Ian Ritchard, thought the legislation only applied to matters before the Magistrates' Court. He posted on the Tasmanian Supreme Court website cases which revealed the identity of some tender youths, aged under 17.

A massive amount of scrolling down the rest of the Act would have showed that the legislation also applied to juvenile cases before his own court. 

It was a scribe from The Mercury who alerted the Registrar to the calamity, and then Ellis charged in. 

The Registrar pleaded guilty and a kindly beak let him wriggle free without a conviction being recorded.  

Your ticket to the missing bits  

Remember the case of Stern v Coutrellis? 

We brought you the details of the decision of Master Wheeler in the Supreme Court of Victoria and his generous view of "exemplary" damages in defamation (Supreme Court Master in the grip of the grapevine). 

Wheeler awarded $500,000 in general damages to prominent Melbourne solicitor Stephen Stern, previously a partner of Freehills, now with Corrs. The Master then popped another $250,000 on top to teach the defendants, who did not show up, a lesson. 

Wheeler purported to quote the defamatory letter in full in his reasons, and in the public interest Justinian reported it from the judgment. 

The document was all about dark jockyings for power in the fabulously pivotal International Wine Law Association. 

But was the letter in the judgment the full text of the original? Apparently not. The original text was circulated among some of the partners at Freehills and powerful memories confirm to us that a small slice of the letter failed to appear in Master Wheeler's judgment. 

The slice in question reads:  

"Miss Billet was a junior associate of our firm. Mr Stern seemed to form a very close personal relationship with Ms Billet at the Congress. This relationship developed to such an extent that it affected Ms Billet's work performance. This was one of the factors which led us to the decision not to renew Ms Billet's contract with our firm. 

"After Ms Billet had left our firm and upon reviewing our electronic mail system, we discovered that Mr Stern had corresponded with Ms Billet on a number of occasions ..." 

It seemed strange that the italic bit should be missing from the judgment. Were things being censored to protect sensibilities? Surely not. 

We learn that Master Wheeler thought he had quoted all the letter and apparently is at a loss to explain how a couple of sentences vanished. 

We thought it our duty to clarify this lacuna, lest there be further confusion.  

Wood gored  

Justice James Wood: advocated conscience and compassion in drug cases

The former President of the NSW Court of Appeal, Athol Moffitt, has sunk his ageing gums into the slim, smooth buttocks of the chief judge at common law in NSW, Justice Jim Wood. 

Last November Wood delivered a stirring speech at a Uniting Church jamboree in support of legislation for a licensed heroin injecting room. 

He said that judges should "take a strong stand against unjust laws and policies...  

"I am convinced there is a proper role for the law and the judge to balance strict law enforcement against the purveyors of this evil [drug pushers] and an approach that accommodates conscience and compassion." 

He was critical of the drug policy of zero tolerance, and added: 

"... there are those who say judges have no business expressing such views - they should quietly apply the law and policy set by others, without question or protest. I do not believe judges should be silent on issues such as this." 

There are those who say judges have no business expressing such views. 

Moffitt in the last issue of the gerontocrats bible, Quadrant, launched a wheezy attack. He said that Wood had entered into a political debate.  

"A judge who intrudes into and seeks to influence a political decision is in breach of his public duty as a judge - misconduct in office." 

The old Moff went on to say something utterly amazing:  

"A judge is bound to respect and enforce a valid law of the legislature and is in breach of his public duty if he seeks to make a de facto amendment of a valid applicable law by not enforcing it, or by expressing his personal view of its merit." 

Dear oh me. Judges tinkering around with valid laws! Where will it end?

Ancient Athol will be remembered as the judge who, like James Wood, became a Royal Commissioner. His commission from 1972-1973 was to investigate organised crime in NSW. 

He says in Quadrant that he declined some of the terms of reference as "too political, and insisted the inquiry be more generally into organised crime". 

He made some recommendations, most of which were studiously ignored by successive governments. 

Importantly, on a key term of reference his finding was that the Askin government had not attempted to cover-up organised crime or crime in the clubs. 

It gave the impression that "Sir" Robin Askin smelled like roses. 

In fact, Premier Askin was one of the biggest crooks in NSW, as was subsequently illuminated by investigative reports. He died leaving an estate of $1.8 million and his widow, Lady Molly, died leaving another $3.7 million. 

His fortune was derived from trousering bribes from the Galeas and other racketeers. 

Anyway, Askin was not displeased with the Moffitt report. 

As Athol tells it in Quad-Rant: 

"Soon after my commission expired, I became President of the NSW Court of Appeal." 

Quite so.