5 Cases We’re Talking About Halfway Through 2019

Australian courts dropped multiple high-profile decisions in the first half of 2019, leaving those in the legal flock with dramatic inclinations revelling in what will likely be an even stronger second half… you’re up, Folau!

While Aunty cries foul on the Federal Police’s decision to raid its headquarters (ABC v AFP TBD FCA), Charles Waterstreet squares up to the New South Wales Bar Association (TBD NSWSC) and Izzy Folau attempts a Hail Mary pass against Rugby Australia (TBD FCCA), let’s breakdown the first half of our legal year…

Hollywood continued its brazen invasion of the Australian legal system, with Justice Wigney taking a deserved break from the usual jurisdiction of the Fed in the Geoffrey Rush defamation case. Victorian County Court Chief Judge Kidd danced expertly on head of a pin, delivering crafted nuance in what may turn out to be the highest profile sentencing decision this century in DPP (Vic) v Pell. In the High Court we had sperm donor “parents“, and a curious a challenge to safe access zones.

So, hold on to your practising certificates (if you’ve still got them); the cases below are some of the most talked about moments from our courts in the first half of 2019.

Rushing back to Nor(mal)vill – Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (April)

With a dramatis personae rivalling 2017’s blockbuster Wilson v Bauer Media Pty Ltd [2017] VSC 521, the Rush defamation case was as harrowing as King Lear’s lament on the death of his youngest daughter, Cordelia. At least, Justice Wigney seemed to think so, beginning his monumental 927 paragraph opinion with Lear’s soliloquy.

While the Federal Court is a novel forum for pure defamation claims (and no further insights on the question of its jurisdiction were forthcoming), Justice Wigney tackled the unenviable task of adjudicating the credibility of an unwitting complainant as well as the potential damage to reputation of a global superstar, with appropriately judicial aplomb.

The defamatory publications by Nationwide were based on allegations that Geoffrey Rush had engaged in “scandalously inappropriate behaviour of a sexual nature”.

Nationwide, despite being a named respondent, appeared almost a bit player in this thespian legal drama. While Mr Rush was ultimately victorious, some due consideration should be given to the unfortunate position of Ms Norvill, who was “essentially dragged into the spotlight because of the actions of Nationwide…“.

There’s a strong argument that a defamation claim mounted against Nationwide for the publication of material defamatory to Mr Rush was not the most appropriate forum for the airing of what seems to be the actual dispute between Ms Norvill and Mr Rush over allegations of inappropriate behaviour in their workspace.

While judgment might be in Geoffrey Rush’s name for $850,000 (non-economic loss including aggravated damages; special damages for economic loss reserved for assessment), the reputational damage from being tarred by the #metoo brush will likely result in a loss of earnings for Ms Norvill and Mr Rush for years to come.

Can you say pyrrhic?

Dishin’ dirt with Donnie Burke – Dent v Burke [2019] ACTSC 166 (June)

Speaking of; Justice Mossop of the Supreme Court of the Australian Capital Territory entered the half with just minutes to spare, rushing onto the defamation scene from stage left in Dent v Burke. This one is a bit convoluted; bear with me as we unpack it from go to woe in six paragraphs.

Remember the allegations made against Don Burke? On 27 November 2017, Australia’s most infamous gardener appeared on A Current Affair defending himself against allegations of sexual misconduct alleged to have occurred on his eponymous gardening show (partly by disclaiming non-medically diagnosed Asperger’s in a twisted manoeuvre a yogi might call the “Kevin Spacey“; notably involving placing a foot in one’s mouth).

In the face of a “resigned” and “sceptical” TV icon Tracy Grimshaw, Mr Burke mea culpa‘d to extra-marital affairs and bullying female staffers but did not admit to sexually harassing anyone – at one point, quite randomly, even dragging in mention of his daughter to plead the seemingly pervasive (non-legal) defence to poor male behaviour of being an insensitive, but purportedly affable, berk (British; cf. larrikin).

Wendy Dent, the plaintiff in this matter was one of the complainants at that time lining up against Mr Burke, alleging he asked that she audition topless. Ms Dent’s case was that Mr Burke j’accuse‘d her of being a liar during the interview on A Current Affair, as well as that he conveyed an imputation that she had made a false allegation of sexual harassment that was “motivated by a wish to join a witch-hunt against [him].

In defending the proceedings, Mr Burke punted a somewhat perplexing argument that “the ordinary reasonable viewer would conclude that if anyone was lying, it was [Mr Burke] and not [Ms Dent]” because, inter alia, Ms Grimshaw’s presentation was “sceptical and accusatory” and in the context of “many allegations“.

Mr Burke was, bizarrely, successful in defending the action on this argument and judgment was entered in his favour. The greater story was not lost on Justice Mossop, who opined dryly in the concluding paragraph: “[t]he irony of the defendant obtaining judgment in his favour on the basis that he has will be obvious“. Stranger things…

Prison Pell-grimage – Director of Public Prosecutions (Vic) v Pell [2019] VCC 260 (March)

… have indeed happened. While we’re on the topic of the inexplicable and mystic, you could argue it was poetic justice that a man so steeped in the ritualised judgment of his fellow man found himself judged, and found wanting, by a jury of his peers.

Chief Judge Kidd of the County Court of Victoria had to wade through some unusual factors in Cardinal Pell’s extremely high-profile sentencing. Inarguably, the Chief Judge faced a daunting task – stating in his judgment that “sentencing is often simplistically portrayed by some in the public sphere as being an easy and uncomplicated task. From where I sit today, the exercise is far from an easy one. And it is certainly not simple“.

The state-sanctioned deprivation of liberty is the cruellest punishment in our judicial arsenal, and the Chief Judge finely demonstrated the difficulties that necessarily face those that must, by fate and circumstance, bring that terrifying power to bear. With calculated and understanding nuance, Chief Judge Kidd reminded us all of the very pointy end of judicial power.

The Cardinal’s sentence was not, the Chief Judge said, a “vindication” of the trauma of victims of institutionalised sexual violence, and the Cardinal was not being, and could not be, punished for those wrongs. Cardinal Pell was only being sentenced for the crimes for which he had been charged and convicted.

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Addressing Pell directly, the Chief Judge made clear that the Cardinal’s sentence was not made “sitting in judgment of the Catholic religion“, nor was Cardinal Pell being made a “scapegoat for any failings or perceived failings of the Catholic Church“. Cardinal Pell, like anyone brought before the court, was to be sentenced as a “member of the community, like any other“; the man and not the myth.

It’s a fool’s gambit predicting the outcome of the Cardinal’s appeal against conviction. In the meantime, Chief Judge Kidd admirably dissected a complicated case for wider than normal public consumption, and sharply demonstrated the continual need to uphold “balanced and steady hand” of justice in civilised societies.

The Parent Trap – Masson v Parsons [2019] HCA 21 (June)

If there is one theme to arise out of the first half of the year it’s that sometimes there really are no winners in contentious litigation. Our next case is no different. It begins, as it always does, with a friendship. It ends over a very public dispute over who qualifies as a “parent” in Australia’s highest court. Meet Masson v Parsons. Former friends, attempted lovers, and now confirmed legal parents to a biological sprog.

The pseudonymous parties had a long-standing close friendship. So close, in fact, that they agreed to conceive – naturally, at first, and when that didn’t go quite to plan, through informal insemination. So far, so friendly.

Enter the also pseudonymous foil, Margaret. Margaret was Ms Parsons girlfriend. On Mr Masson’s submission he was not, at that time, aware of the relationship between the women, and Margaret’s presence at the second (successful) insemination attempt was as a “support person“.

Years pass and Mr Masson engages as a father to the child and becomes friendly to Margaret – until Ms Parsons and Margaret try to take the child to The Land of The Long White Cloud (NZ), and the proverbial hits the legal fan.

Among the issues was whether Mr Masson was a “parent” and, subsequently, capable of foiling the relocation. The High Court found that he was a parent within the “ordinary, accepted English meaning of the word“, because the “question of fact and degree” was relevantly answered by Mr Masson’s conduct (i.e. expecting to be the child’s parent, being listed on the birth certificate, and actually supporting and caring for the child as a father).

The nuance was lost in the ensuing media storm, because while clickbait headlines proliferated, the High Court stated it was unnecessary to decide whether “a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure … falls within the ordinary accepted meaning of the word “parent”.”

Vale to the former friends.

What’s the issue? – Clubb v Edwards; Preston v Avery [2019] HCA 11 (April)

Finally, lets end our dramatic romp through 2019’s most talked about case law… so far. The Clubb v Edwards; Preston v Avery decision saw the High Court step out on a limb in the absence of an issue. Come again?

As reported in Legal Insight, the decision was about whether safe access zones surrounding abortion providers in Tasmania and Victoria fouled the implied freedom of political communication (no, for the latecomers). Mrs Clubb was convicted in the Magistrates’ Court of Victoria of engaging in a prohibited behaviour inside a safe access zone (communicating about abortion to someone accessing abortion services and likely causing anxiety or distress).

In the Clubb part of the proceedings the court acknowledged some force in a submission from the intervening Attorney-General of the Commonwealth that there was no evidence that Mrs Clubb’s conduct involved a political communication:

A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial.”

The court acknowledged that, traditionally, this would be the end of the matter – going on to say that it is a generally accepted proposition that courts will only determine when a statute contravenes a constitutional provision when it is “necessary to secure and protect the rights of a party against the unwarranted exercise of legislative power“.

The court made an “exception to its usual practice” on three grounds. The most notable being that the likelihood of a question arising involving safe access zones and a political communication was “obvious” – which the Preston part of the proceedings, actually involving a political communication, illustrated rather succinctly.

So, while we await the whistle signalling the end of second half of the legal year, and the all the drama the half is sure to bring, spare a thought for those pyrrhic-ly victorious, the unwitting and unwilling witnesses, and the broken friendships comprising the first half of the legal year 2019. As well as to the judges and justices working in the media spotlight right on the fine line of controversy under pressures most of us can truly only imagine.

Alexander Ross Davis is a Sydney-based lawyer and Practical Law Australia writer. Previously he worked as a senior legal editor with Thomson Reuters’ Primary Law team. Prior to joining Thomson Reuters, he worked for the restructuring and insolvency team of Squire Patton Boggs, as litigation paralegal at a family-run firm, and as an associate at a NewLaw startup. Ross has assisted in litigating a broad range of civil and criminal matters in courts and tribunals in New South Wales, Queensland and Victoria.

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