DJs commence legal action

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.

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9 Comments

Filed under corporate paedophilia, feminism, law, motherhood

9 responses to “DJs commence legal action

  1. Law Student

    March v Stramare…loved that case. Probably the only torts case i’ll ever remember.

  2. Legal Eagle

    It’s weird the cases you remember, isn’t it? In subjects I don’t teach, I tend to remember cases with crazy facts better than anything else (for some reason I remember this case called Safeway Stores v Zaluzna – lady slipped on a grape at Safeway and sued). I love cases with crazy facts. Lord Denning could make the facts of almost any case interesting.

    “The facts” of a case are a funny thing. When I worked in the Court, I used to find it very weird seeing witnesses examined – it was like you were getting a peep into a totally different world for a few days – and you’d have to learn about all kinds of strange things to understand what was going on (eg, if the case was about tyre manufacturing, you’d become a sudden expert on aspects of tyre making).

    I even learnt some Greek when we had a witness who didn’t speak English – I know the Greek for “mortgage”, “bank account”, “house”, “land transfer”…I’m sure that will get me a long way if I ever get stranded in Greece.

  3. HVB

    It’s funny you should raise this issue…I’ve just come back from Court, where a client of mine is being sued by his former employer for reasons which are purely vindictive. I do not believe the employer has a case at all.

    I indicated my surprise to my client that his former employer had not been persuaded by his solicitor to drop the case, as even if he wins it will get him absolutely nowhere, and financially speaking is a poor decision.

    My client looked at me in surprise and said “of course they’re encouraging him to take the case – they’ll get buckets of money!”

    I felt slightly ill at the idea that a solicitor would encourage a pointless case just to get money, and I tried to say that that was not how solicitors worked – but realised that the best I could say was that’s not how they’re supposed to operate.

    I guess it’s another one of the reaons lawyers get a bad name….

  4. Law Student

    Legal Eagle, are you a law lecturer?

  5. Legal Eagle

    Law Student, I’m both a lecturer and a student – presently doing a PhD and lecturing a couple of times a week.

    If you came to my classes, I’d teach you to love Property, Equity and Restitution. And, of course, the resulting trust.

  6. Legal Eagle

    HVB, that’s terrible. I know that we have a duty to follow our clients’ instructions, but I had a long-running argument with a fellow at one of my old workplaces that we also have a duty to keep our clients sensible where possible. He was of the opinion that a solicitor or barrister had to follow a client’s instructions to the letter, no matter what.

    To my mind, a legal representative acts as a filter, looking at things dispassionately and telling a client when his or her behaviour is not sensible or ethical. Otherwise, we may as well just let litigants have fisticuffs in a ring instead and forget the legal process.

  7. Law Student

    I’ve dropped restitution and replaced it with family law instead.

    I’m sure i’ll be asking you questions regarding property, equity and trusts during the course of the year. As long as you’re fine with it.

  8. Paul

    LE – which court were you with, out of interest? I’m currently taking a year out of commercial work to do an associateship.

    I also share an unhealthy love of equity – in commercial matters I always liked to put a bunch of equitable claims on the end of any statutory/contractual/common law claims, it’s very surprising how useless many commercial lawyers are when it comes to equity.

  9. Anonymous

    Legal Eagle,

    I’m from Sydney and practising Tort Law and yes I love running ‘hopeless’ cases because that keeps me awake at nights.

    Keep blogging.
    BTW, I write this with clean hands.

    Law

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