The twitterverse erupted in response to this story in yesterday’s papers about a student suing her former school Geelong Grammar for compensation, saying that it provided inadequate support to enable her to do sufficiently well on her final exams to be accepted to study law at Sydney Uni:

Seeking compensation in the Victorian Civil and Administrative Tribunal, she said her final secondary school score was too low to study law at the University of Sydney.

Of her time at Geelong Grammar, she said: ”I didn’t ever feel I was getting the support I needed to really excel.”

Ms Ashton-Weir boarded at the school in 2008 and 2009 but finished her secondary studies at a TAFE college in Sydney. She is in the first year of a double degree in arts and sciences at the University of Sydney.

Her mother, Elizabeth Weir, is also suing the school for lost income and other expenses.

She said she gave up her chocolate fortune cookie business – which she had expected to make $450,000 over three years – because her daughter moved from Geelong to live with her in New South Wales.

Some might cynically observe that some lawyers in hindsight might have preferred to miss out on the ‘benefits’ of this career, but generally there have been pretty harsh assessments of the idea of litigating a school over this sort of issue.  I can’t resist pointing out that someone alerted the media to this story, and my bet is that it was the girl or her parents.  Given the response, I wonder whether she now considers that was a good decision?

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After I posted a comment on Ken’s recent post about swimmer Nick D’Arcy and his decision to file a debtor’s petition in bankruptcy, he graciously invited me to contribute a post if I am insistent on disagreeing with his take.

Ken argues that there is something that doesn’t seem quite fair about Nick D’Arcy’s “strategic” decision to voluntarily declare himself bankrupt and so avoid paying the court order for compensation (and costs) made in favour of Simon Cowley in relation to injuries that Cowley suffered when D’Arcy assaulted him in 2008.  He suggests that perhaps the liberal forgiveness of debts which occurs under Australian law should be amended somewhat where the bankruptcy is commenced voluntarily to avoid this sort of peverse incentive to file for bankruptcy.

I disagree.  But I find it more interesting the way that this narrative suggests that D’Arcy has acted in an immoral way.  Just what is our morality of debt?

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I have been observing with interest the latest news that ASIC has commenced action against the directors of James Hardie Industries for breaches of the Corporations Act between 2001 and 2003.

Now you may recall that in a blaze of publicity over asbestos related illnesses and claims by former employees and those that used products produced by James Hardie, the company proposed to move its operations off-shore to the Netherlands. This may have meant that the assets of James Hardie would be placed out of reach of potential claimants. They facilitated the move by setting up a compensation fund to meet current and future claims. In due course, it became apparent that the fund was insufficient by an order of magnitude. Ken Parish commented on this at the time (with some reference to relevant facts). The Age summarises the relevant facts thusly:

The Australian Securities and Investments Commission (ASIC) is alleging breaches of the Corporations Law between February 2001 and June 2003. This includes company statements that its asbestos compensation was “fully funded” when it moved offshore to the Netherlands in 2001.
Company executives were first told in April 2001 that a trust set up just two months earlier was likely to run out of money decades before all claims were paid.
The company did not agree to meet the shortfall until July 2004, after a NSW special commission of inquiry sparked a public furore.

This has the potential to be one of the great Australian corporate shame files. The various inquiries into the actions of James Hardie, its lawyers Allens Arthur Robinson and other key parties at best paint the whole process as an undertaking by people not very concerned about whether or not compensation would be paid. But criminal charges have yet to arise from the debacle. I am sure that the regulators were keen to ensure that nobody could be seen to be getting away with murder, especially following the announcement that payment of the claims are now indeed fully funded.

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Peter Faris today expands his defence of the anti-terrorism laws under which Jack Thomas has been subjected to a control order.   He frames this analysis as a reasoned legal one:

Two issues arise. First, is the control-order legislation good and appropriate legislation against the perceived terrorist threat? Second, has this law been appropriately applied to Thomas?

I pricked up my ears eyes because I thought he might actually go on to set out on a legal basis why he supports the existence of this legislation.   But if you read on, his answer to the first question is simple:

But I also point out that the control-order legislation is a valid law passed by our democratically elected parliament and is the law of the land. It must be applied, even if some people consider it to be a bad law.

And later:

…it really doesn’t matter what I think. The reality is that any control order proceedings take place according to the laws of Australia, in open Australian courts.

Subject to national security issues, the public (through the media) are made fully aware of any proceedings. An independent judicial officer considers the case and makes impartial findings. His decisions can be reviewed or appealed. The constitutional validity of the law can be tested in the High Court.

As a lawyer writing an opinion piece about whether or not a particular set of legislation is good or bad, Faris has effectively created the “innocent until proven guilty” doctrine as it applies to legislators.   Laws are valid until proven otherwise provided they have been properly enacted.   This is of course true in a constitutional sense, but Faris is not commenting constitutionally.   He is using this response to answer the question “is the control order legislation good and appropriate legislation against the perceived terrorist threat?”   Yes,  says Faris, so long as it is constitutionally valid.

But despite this slippery evasion, I would herald this opinion piece as a landmark moment in the culture wars.   I can see the headlines now – “Right wing legal commentator  supports the role of the High Court to strike down unconstitutional legislation!!”

Yesterday’s Crikey mail included a comment by Michael Pascoe about the seemingly endless stories about corporate shonks being able to retain profits from their dodgy dealings.   He writes:

One should always be wary of suggesting another legal penalty to Laura Norder-crazed politicians, but it looks like we could do with some of nice, broad catchall power to seize assets suspected of being the proceeds of shonkiness and scumbaggery.

Your simple mugger or drug pedlar seems to be caught up easily enough by proceeds of crime statutes, but white collar grubs like Westpoint’s Norm Carey and real estate spruiker Henry Kaye appear to delight in playing the legal system for mugs much the same way they did investors.

He referred in particular to this article  in the Age which reports that failed property developer, Henry Kaye had secretly shovelled $50million into a real estate development, Wyndham Waters, prior to his company (National Investment Institute) going into liquidation.   The article is interesting reading, if only for the apparent grand-standing of liquidator Andrew Hewitt who flags that he has the power to seek an order that Kaye be imprisoned if he doesn’t produce books and records of the company and assist with the investigation.   Unfortunately in reality there often isn’t nearly so much glamour in the high stakes of insolvency litigation.

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