Monthly Archives: July 2008

Sonny Bill and the fiendish frogs

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What a lot of nonsense has been talked about the defection to French rugby of rugby league star Bobby Sue Billy Jo Sonny Bill Williams! 

First, the NRL isn’t going to succeed in getting an injunction to restrain Sonny Bill’s defection, still less get a French court to enforce it.  Injunctions generally aren’t granted to enforce contracts of personal service (employment contracts) nor where money damages would be an adequate remedy (as they certainly would be here).

Nor is Sonny Bill likely to be able to successfully challenge the NRL salary cap system.  It’s just an empty threat. 11. KP: What is really in prospect, despite all the hot air, is a common law damages action for breach of contract by Sonny Bill.  Canterbury Bulldogs will certainly win, but Sonny Bill presumably calculates that he stands to make much more in France even after subtracting the damages and costs Canterbury will certainly get awarded.  Once everyone gets their legal advice to that effect, the dispute will probably settle before trial.  [↩]  First, the Trade Practice Act isn’t available because its relevant competition/restrictive practices provisions don’t cover “contracts of service” or employment contracts (as opposed to “contracts for services” or independent contractor arrangements).  Common law action seeking a declaration that the salary cap is an unreasonable restraint of trade is slightly more likely.  Way back in 1971 Balmain player Dennis Tutty successfully challenged the then RL transfer fee system on that basis, while more recently Penrith player Phil Adamson successfully challenged the then internal draft system in 1991, and in other sports various courts have ruled that zoning and residential rules, and restrictions on transfers within a league and between leagues  were all unreasonable restraints of trade.  

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What’s ugly?

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velib2.jpg Would you find lots of oval shaped stations popping up all over the place in your city an eyesore?  And they have advertising on them.

Still, I reckon you wouldn’t.  You see they’re bike exchange stations and in Paris they’ve got them every 300 metres or so.  And I just know that beauty is not just in the eye of the beholder, but also in the eye of the beholder of the purpose of the ugliness.

How do I know this?  Because I live in Melbourne.  And Melbourne trams require wires overhead to do their trundling down the street.  And people like all those overhead wires.  Indeed they celebrate them. And they like trams even though buses cost less and are more convenient in many ways.

Meanwhile, things weren’t so hunky for Optus when they were installing much less intrusive overhead cables back in the 1990s. I’m not complaining by the way.  I like tram cables, and find that the way I’m connected to the ground with rails and steel wheels somehow more comforting than being in a bus.

In the meantime although the Paris bike swap program doesn’t seem to make much environmental or economic sense, there’s something that pushes it over the line commercially.  Those ads on the stations. And my guess is that while people might dislike ads in lots of other places, like those overhead wires in Melbourne intersections, those Parisians kind of like the ads.  I’d probably be the same.

Desperately fishing for votes

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The High Court’s decision earlier today in the Blue Mud Bay case sets the cat among the pigeons (or maybe the shark among the barramundi) a little over a week out from the Northern Territory election.  The Court has dismissed the NT Labor government’s appeal from a decision of the Full Federal Court, and confirmed that the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) gives Aboriginal Traditional Owners the right to exclude access to the intertidal zone and coastal rivers in the Northern Territory, probably over something like 80% of the NT coastline which comprises Aboriginal Land.

It means the Northern Land Council can implement its own licensing regime charging lucrative licence fees for commercial fishermen to continue earning a livelihood, and can also potentially impose a charge for annually renewable permits for amateur fishermen to be allowed to pursue their precious recreational hobby. 

The latter threat especially is political dynamite in a pre-election atmosphere.  Every person and their dog in the NT (except yours truly) is a recreational fisherman, and their lobby group AFANT is extraordinarily powerful.  Fishing has been every Territorian’s inalienable right until now, subject only to bag limits but certainly with no requirement for a licence or permit.  God forbid in this self-styled last bastion of rugged individualism, where real men drink buckets of grog, don’t eat quiche and won’t tolerate open road speed limits or interference with their sacred right to turn Darwin’s suburbs into a Beirut-style war zone every cracker night and for months thereafter. 

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A new saving and payments system

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pig money box by cupcakes for clara.Here’s today’s column in the Financial Review.

The interface between you and your bank used to be the branch. Today banks give your computer sufficient access to their computer over the net to let you do it all yourself.

Reengineering of the interface is happening everywhere as government agencies from the ABC to the ABS let us search and download their content anytime, anywhere. And in the UK where theyre sufficiently alive to such possibilities to have a Minister for transformational government, theyre taking things further.

For instance their National Archives are moving to provide and enable so that your computer gets to mess with their computer. The archives are no longer to be a collection of documents. Theyll be a database of content which users can search, gather, repackage, repurpose and republish.

In a similar way we could transform another interface to build a simpler, safer financial architecture for our savings and payments, an architecture capable of keeping your money safe during the worst depression or financial crisis. Continue reading →

Max Mosley, Bondage and Civil Procedure

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I realise this is kind of missing the main news story in the recent court victory of Max Mosley – son of Oswald who was the leader of the British Union of Fascists.  (That’s not to say that Max should automatically be tarred with the same brush, but he does seem to dip into that tar in his own private time).

Max was outed by the News of the World for holding a ‘Nazi style’ bondage event with five hookers.  I haven’t looked into it in great detail, but it turns out (ie the court held) that it wasn’t Nazi style, just bondage – and that he had a right to privacy – which he probably did.  So bully for him.

Anyway, his (don’t make me laugh) honour or perhaps it was their (don’t make me laugh) honours found that Mosley was entitled to around US$120,000 damages.  Now one might have thought that one could come to a conclusion about a case like this with the expenditure of – say – US$20,000 in costs, or maybe US$50,000.  Make it US$100,000.

But no, the British legal system – not very different from our own in this respect – chewed through US$1,700,000 in arriving at its conclusion.  Very clever. Reminds me of the old Balmain ferry case although in that case it was more illlustrative of the plaintiff’s folly (he famously ended up bankrupting himself – going all the way to the Privy Council in London – arguing over a penny.)

Anyway, if you toss in the state sponsored costs of the court itself, which are not typically met by litigants, perhaps we’re getting upwards of $2 mill in costs, to settle a dispute ultimately judged worthy of $120,000. And for those who want to get on with what really matters and watch the video, it’s below the fold. Continue reading →

Crowdswiping

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Via Beth Simone Noveck, Amex has got into the crowdsourcing game announcing an exciting and innovative philanthropic program Members Project in which you can propose projects, vote on the projects of others, and in so doing qualify them for $2.5 million of funding from Amex. The slogan? “Your Ideas. Your Decision. Our Money.”

Meanwhile, and if I am to come up with a culprit I’ll plump for the culture of our much loved legal profession rather than any grasping of Amex senior decision makers, here’s what happens once your ideas have been crowdsourced.

You irrevocably assign to American Express all rights (including copyrights) in any ideas or expressions of ideas that you provide on or through the Project Site, including without limitation the Project Submission and all comments, suggestions, graphics, ideas (including product and advertising ideas), and other information or materials you submit on the Discussion Boards and otherwise on or through the Project Site (collectively, “User Content”), all of which will become and remain the exclusive property of American Express, including any future rights associated with such materials.

You’re not assigning rights to use, you’re handing over “all rights”.  Crowdsourcing becomes crowdswiping.