There’s been a couple of posts on blogs I like to read (here, here, here and here) on David Jones’ decision to commence legal action for misleading and deceptive conduct against the Australia Institute and Clive Hamilton. The proceedings relate to a media release in October 2006, which reported Clive Hamilton as saying:
“Major retail chains such as David Jones and Myer have jumped on the bandwagon. When family department stores show no conscience on these issues, or are inured to the effects of their behaviour, the situation is very unhealthy.”
Now, is there any way I would have gone out and looked at that press release had there not been publicity and a legal action in the offing? No. Would I have even thought of DJs and corporate pedophilia in the same sentence were it not for the issuing of proceedings? No.
I certainly don’t like the current trend to expose children to overtly sexualised images at a young age, as I have detailed in a previous post. As the parent of a young girl, it worries me greatly. But legal proceedings are not always the best way in which to deal with a dispute. I shouldn’t be saying this: I’m a lawyer after all…and once a litigator…so I made my money by running disputes. But nevertheless, I am an honest lawyer.
On the weekend, a lawyer friend and I were discussing cases which should never have gone to Court. I have witnessed cases where the presiding Judge has said to the parties, “Have the parties considered settling this case? After listening to opening submissions, I think it would be a good idea.” Sometimes the parties listened, sometimes they didn’t. As I said to my friend and his wife over lunch, I think that a part of the role of a solicitor or a barrister is to hose the client down. The solicitor or barrister should not indulge the client’s fantasies and take their money if there is no (or very little) prospect of a person winning. I feel sick when I see ordinary people being ripped off by incompetent or greedy legal representatives who run cases with no hope of success. As lawyers, we have a position of privilege because we are empowered by our knowledge of the law, and we should not abuse it.
In any case, the publicity surrounding this case can be nothing but negative. I would never have linked DJs and corporate paedophilia in my mind…”but for” this legal action (to adopt the causation test from March v E & MH Stramare (1991) 175 CLR 506…once a nerdy lawyer always a nerdy lawyer). Now DJs and corporate paedophilia will be inextricably linked in my mind, whatever the outcome of the case. It’s something to think about. I exhort any litigants to think carefully about what they want to achieve when they commence a legal action.