Speak No Evil

I note that the Attorney-General of Australia is suing the ABC and one of its journalists for libel.  It ill behoves a construction lawyer to say anything at all about the law of libel. And it might be a very bad idea indeed for anybody to say anything about the facts of the case, for fear of saying something that is itself defamatory.

But I can share an anecdote.

Many moons ago, when I was a solicitor running a construction law practice in London, one of my clients was quite seriously libelled in one of those free newspapers that was popular at the time. The allegation was, we had no doubt, politically motivated. Those writing for the newspaper had a political objection to the privatisation initiatives of central and local governments at that time, and my client was being targeted as a participant in one of those privatisation initiatives.

Obviously, I told my client that I should not act. I knew nothing about defamation law other than what I had learnt at law school. The client should go to a specialist, I said. But no. The client was insistent. The basis of the insistence was that we always won, and the client had a touching belief that if I could win in other areas, I could equally well win a defamation action.

So we issued proceedings, rather expecting the newspaper to settle, and to publish an apology. They could not and did not plead justification, since the allegation was not only untrue, but without a shred of supporting evidence other than tittle tattle from others with the same political agenda. Instead, they pleaded that they were entitled to qualified privilege as a newspaper publishing fair comment.  They relied up on some 19th-century legislation (the Law of Libel Amendment Act 1888 or something similar, as far as I recall)[1]. A week or so before trial, they were still refusing to settle.  We had, of course, engaged an experienced defamation specialist as counsel; he said that that defence might or might not succeed. My client was determined to plough on.

I was doing a bit of sailing at the time, in preparation for the Fastnet race. A good friend of mine Continue reading

Granny Love

Exchanging a bit of memorabilia stuff with my brother, I was reminded of the romance between my grandmother, Molly Fenwick, and the barrister Howard Gritten MP. Perhaps unwisely, Granny refused to marry Mr Gritten despite his repeated proposals, but instead married the less satisfactory Montague Davies, who she later divorced. I never met Monty; the family said he was a bad egg. A talented musician, but not a good sort.  He got blanked out of the family.

Why is this piece of personal history of any relevance on this legal website? Because some matter of bizarre coincidence, I have now learned that Howard Gritten practised out of 11 King’s Bench Walk in The Temple, the original home of Keating Chambers, and where my contemporaries in Chambers practised when I first instructed them when I was a solicitor.

What a small world.

If Granny had married Howard Gritten, things would have course of turned out very differently for her. And Continue reading

Victorian Hat Trick in Yuanda v Façade

I am pleased to be able to say that my arguments have prevailed in the Victorian Court of Appeal in Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44.

In short, the point was this. Under the Victorian security of payment legislation, if the respondent does not put a payment schedule in on time, the claimant can either go to adjudication, or alternatively can ask the court to give judgment. But under the relevant provision[1], such judgment is not to be given unless the court is satisfied that the claimed amount does not include any excluded amount, and by the definition section of the Act, the claimed amount means the amount that was claimed in the original payment claim. There are some somewhat complex provisions in the Victorian legislation is to what those excluded amounts are. In this decision, the Victorian Court of Appeal has said that this provision means what it says: if the original payment claim includes claims for excluded amounts (in this case, it was a claim for interest, and perhaps other claims) the court cannot give judgment, and in particular, cannot sever out the excluded amounts and give judgment for a lesser sum.[2]

It is not uncommon, particularly in larger cases, for the original payment claim to include claims for excluded amounts. Such payment claims are not usually drafted by lawyers, and it is all too understandable that they often include claims for excluded amounts (such as interest, or certain contested variations or time-based claims). It is also not uncommon for the respondent, by administrative oversight, to fail to get its payment schedule in on time. In those circumstances, the claimant should not be tempted to take the “shortcut route” of an application to the court, but instead should go to adjudication, where the adjudicator is tasked with identifying any excluded amounts, such that those excluded amounts not find their way into any determination of what is due. Claimants should only go directly to court if they are confident that their claim is “squeaky clean” of excluded amounts.

The majority (McLeish JA and Niall JA) needed just 13½ pages for their part of the judgment. Dissenting, Sifris JA kept Continue reading