Menzies, Paul --- "Editorial: Those whom the gods wish to destroy, they first drive mad" [2019] PrecedentAULA 39; (2019) 153 Precedent 2

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THOSE WHOM THE GODS WISH TO DESTROY, THEY FIRST DRIVE MAD

By Paul Menzies QC

Dr Gray doggedly pursued the plaintiff, to the court of last appeal, determined to find resolution of the question of the proper application of s5O. He failed in the High Court and, as David Hirsch pointed out, we may have to wait for another vehicle. There are some indications in the transcript that the court is likely to favour Basten JA’s construction and reject McKenna.

The issue may ultimately be resolved at the level of the Court of Appeal; arguably, inasmuch as McKenna was overruled, albeit not on this point, it is authority for nothing and will not be followed in the Court of Appeal. Until then, as the High Court has made clear, practitioners are left to prepare with both alternatives in their purview.

Ms Pentelow, barrister, took the prudent course of engaging counsel to represent her in a claim with respect to unpaid fees but relied upon the Chorley exception with respect to some work that she had done herself and claimed for. As Sharon Drew notes, the question of the scope of the Chorley exception is now reserved in the High Court. Those who were there tell me that it almost certainly will go.

At the recent Convergence Conference in Singapore, the chilling effect of Australian Consumer Law on bringing cross-border disputes into the Australian jurisdiction was noted and Scenic Tours Pty Ltd v Moore provides a stark illustration of this. What would possess a foreign corporation to seek to adopt Australian law in a cross-border dispute and bring down on its head the consumer protection provisions?

Kaitlin Ferris’s explanation of the increasing role of class actions developments in litigation funding is indicative of hopefully a beneficial change, but equally it illustrates the labyrinth that seems also to be developing. It ends with the depressing comment, ‘If the procedural funding tool survives appeal, we can expect to see more diverse litigation funded on behalf of victims of a broader range of wrongdoing in future.’

Anna Talbot’s review of ‘Plaintiff M68-2015’ in the High Court highlights, as she says, ‘Both the extents and limits of Commonwealth power in both its legislative and executive functions’, and still leaves open the question of how the fact that most of the asylum seekers have now been assessed as refugees and are living in the community may affect future consideration.

Yusur Al-Azzawi provides some timely reminders on the duty of care of police; Fuller-Wilson is illustrative of the downside risk, not often enough considered, of the early strike out application. The Court of Appeal agreed with the Crown that the trial judge was correct in his application of principle. That was not enough on a strike out because it remained open to the appellants to argue that the common law should recognise a wider scope of liability. The appellants had an arguable case that the duty pleaded was not inconsistent with the police’s exercise of a public function or power. The judgment provided useful parameters as to what such a duty may look like.

Be careful what you ask for!

Andrew Morrison points out that the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 disappointingly is prospective and has no retrospective operation. One must wonder why it needed the High Court in King v Philcox to find that a person who went through an intersection five times over the period of a few hours observing that there had been an accident but not knowing that his brother had been one of the victims, could not relevantly be said to have been present at the scene of the accident when the accident occurred.

Dr Plunkett takes us back to March v Stramare Pty Ltd and what common sense means in the present context where, as Justice Ipp observed, the current legislation is in accordance with the common law.

Retain your sanity: one step after another.

Paul was first called to the Bar in 1973, took Silk in 1988, has acted as an accredited mediator since 1995 and been a member of the Chartered Institute of Arbitrators (UK) since 2009.He practises in the international commercial courts of both Singapore and Dubai and appears as an advocate at both trial and appellate level, including the High Court, in administrative, criminal, professional negligence, common, insurance and commercial law.