Monday, April 30, 2012
Friday, April 20, 2012
Thursday, April 19, 2012
When Perram J described the amendment of the name of the Trade Practices Act 1974 to the Competition and Consumer Act 2010 as misleading because it suggested the Act was originally passed in 2010 I thought (respectfully, of course) that his Honour was off his trolley.
However, one feature of the amendments to the TPA has caused considerable havoc, and that is the removal of the consumer protection provisions from the body of the Act and their re-enactment as the Australian Consumer Law in Schedule 2 to the Act.
At least one publisher in the header to their text simply records this part of the Act as "Sch 2", with no indication of which section in schedule 2 is being discussed. This makes it embarrassingly cumbersome to try and find relevant provisions which are interspersed between numerous pages of commentary. Good luck trying to find Australian Consumer Law section 18 (for those who can't find it, that's the old section 52).
That same publisher also, by the way, has simply omitted any reference to the transitional provisions that are operative in relation to the ACL: quite unforgivable. the only explanation is the irritating practice of Commonwealth parliamentary counsel enacting transitional provisions in the Amending Act rather than inserting them into the Principal Act (as is done in NSW) where they will have ongoing utility.
As legal research is increasingly done on-line, the amendments have also caused considerable difficulties for on-line publishing. If one now uses the AUSTLII "note up" function for section 82 (the provision dealing with damages) one would be led to believe that there were only 3 cases in the case law of Australia that had ever referred to this section. The true number is, of course, in the tens of thousands.
Even worse, one cannot "note up" section 18 of the Australian Consumer Law at all, because it is simply one of more than 200 items in Schedule 2, all of which will therefore be noted up together (personally, that's not such a bad thing as it won't be so easy to include hundreds of marginally relevant cases in a footnote in submissions, but the capacity should still be there).
I could go on, but the basic point is that the Commonwealth parliamentary counsel dropped the ball, and the publishers have done little to regather.
Friday, April 13, 2012
Thursday, April 12, 2012
- The SPL made a conscious decision not to provide the defendants with details of the allegations made in the statement of claim (see  to  of the judgment) and insisted that the claim be kept “confidential”: see ,  and ). Quite why the SPL thought that was a good idea is not clear. But of course it backfired badly because the defendants were later able to complain, and did complain, about a statement of claim containing very serious allegations having been withheld from them (apparently only for tactical reasons) for many years.
- The SPL neglected to ask the defendants, after he had rejected the defendants’ offer to delay the proceedings in return for foregoing public examinations, whether they remained willing to delay the proceedings until after delivery of judgment in ASIC v Rich: see at .
- It is not clear what, if anything, the SPL did between April 2009 and September 2009 to secure funding. Certainly there is no evidence of the SPL moving diligently during that period: see at  and .
- It appears that the SPL did not enter into the ultimate funding agreement until shortly before 14 May 2010 (nearly six months after the fifth extension was granted). Again there is no evidence of the SPL moving diligently during that period: see at .
- The SPL (at the behest it appears of the litigation funder) engaged fresh lawyers which further delayed service of the statement of claim: see at .
- The delays in relation to litigation funding were difficult to justify because in essence they involved an attempt by the SPL to secure a gilt-edged funding package to cater for a “catastrophic” cost scenario ($40 million), a figure that was was arrived at by little more than a highly dubious “back of the envelope calculation”: see at . In that regard the SPL failed to pay sufficient regard to “the importance of litigation being pursued with reasonable speed and diligence”: see at .
- In effect the SPL abdicated control of the time at which the originating process would be served to litigation funders: see at .
- The SPL failed to pay sufficient regard to the prejudice that he was causing to the defendants and the risk that the claim (said by him to be worth upwards of $260 million) might be lost completely if the defendants, once served, applied to the Court to discharge the orders extending the time for service of the statement of claim: see at .