Kath and Andy @ the Movies

500 Days of Summer



A: This is one of the worst movies I have seen lately. 500 days of Hell would have been a more appropriate title.

K: This was a sad movie.

A: There really isn't too much to say about this one. I left the cinema feeling ripped-off and unhappy. Ripped-off because I spent the money and time watching it... and empty because the movie was completely vacant of a plot. And dreary... incredibly dreary.

K: Much like you.

A: What will you give this?

K: 2 out of 5

A: I'm giving this 1.

District 9

With all the hype surrounding the release of Inglourious Basterds, District 9 seemed to slip right under the radar! Nevertheless, I selfishly rushed out to see it today without my regular movie going partner (sorry!).

I was extremely impressed with this movie. The opening sequence was in an unexpected mockumentary style which in many respects symbolised and parodied some of the worst aspects of modern history. Notably the treatment of Jews in Nazi Germany, and the relocation of segments of the Indigenous populations of South Africa during Apartheid.

The CG effects were amazing given the relatively shoe-string budget of 30 million. The alien weaponry in particular was particularly cool.

If you want to see a great (albeit slightly off-beat) sci-fi, I would definitely recommend this film. This is up there with the Alien Trilogy.

Warning: not for the squeamish!

Verdict: 8.5/10

Kath and Andy @ the Movies

My Sister's Keeper



A: I have never cried in a movie before, but I did shed a tear during this film. This is a powerful story, that traverses the boundaries of love, betrayal and mortality.

A lot of people have commented that the movie is 'not true' to the novel from Jodi Picoult, so you should really take this film as a stand-alone product before seeing it, or else you may be sorely disappointed. Personally, I did not read the novel prior to seeing the film, and found the film to be simply brilliant.

K: Yes, there are a few twists and turns in the plot, and some of the characters are not true to their portrayal in the novel. Despite this, I found it incredibly uplifting, but extremely sad at the same time. Not many movies are able to invoke this kind of response.

A: And the acting?

K: Yes, it was very good. It was interesting to see Cameron Diaz playing a serious role for a change - vis-a-vis the odd-ball characters she seems to play (see Something About Mary for a prime example). I thought she was quite impressive.

A: Extremely powerful performances from the sisters also, played by Abigail Breslin and Sofia Vassilieva. Alec Baldwin was also great in his role as the lawyer.

A: How many Kleenex tissues, Kathy?

K: Four.

A: I'm giving this four and a half.

Kath and Andy @ the Movies

Public Enemies



A: This is a fantastic movie. When I saw the shorts for this, I was initially reluctant to see it. I thought to myself, 'oh another mindless Hollywood shoot-em-up with a big-name cast'. I was sorely mistaken, though!

K: Didn't your mother tell you not to judge a book by it's cover?

A: Yes she did.

K: You are right though, this is an excellent movie. The director has successfully recreated the feel of the period, and the plot is more involved that one would initially anticipate from looking at the preview.

A: Definitely Kathy. The acting was superb as well.

K: I don't like Johnny Depp, I think he's creepy... but he does do an excellent job as America's most dangerous outlaw (John Dillinger).

A: Yes, he brings a certain charisma and mystique to the role that is hard to deny. How many tommy-guns Kathy?

K: 4 out of 5.

A: I'm giving this 4 as well.

Kath and Andy @ the Movies

A: This week we have three movies for review; 17 Again; The Reader; and Mirrors.

K: Why three?

A: Because the movies we've seen lately have been so poor that we are now reviewing them in traunches.

K: What are traunches?

A: It's a sub-prime (hilarious slide show) related concept. You know how the financial organisations bundled together bad securities, and then got those securities rated by a bond agency, before selling them off to unsuspecting investors? Those differentiated bundles are known as traunches.

K: Why can't you just say 'batches'?

A: Because I'm a tosser. And I also like the analogy. Instead of wasting time and blog-space, we can group the stinky movies into a traunch, and then deliver our own rating. Hopefully nobody will purchase the movies like they purchased the securities, though.

K: I take it you won't be delivering a triple-A rating then?

17 Again



A: We start with the worst of a bad bunch: 17 Again.

K: Zac Efron is wonderful, and makes a fabulous debut to the silver screen. Sadly though, an actor alone cannot save a bad movie. 17 Again is merely a minor variation on the cliche high school (or 'college' to use the American vernacular), coming-of-age, feel-good comedy that Hollywood has been pumping out since time immemorial.

A: They've produced enough to fill an over-sized septic tank.

K: Fair go, Andy! There have been some good ones... the American Pie series wasn't all bad!

A: Yes, the first one was good. Mean Girls was also quite funny.

K: Oh I love that movie. Back on track, the twist in 17 Again, is that Zac Efron (a middle-aged man going through a mid-life crisis) stumbles across a worm-hole that transports him back in time to relive his final year of high-school. As a result, he gains the opportunity to rectify some of the wrongs of his past, and to protect his children (who are enrolled in the same grade) from the school bully. There are a few comical, and touching moments in this film, but all in all the movie fails to deliver on all counts but eye-candy. Zac Efron is really good looking!

A: What did you think about the Friends guy, Matthew Perry, who was cast as the older Zac Efron?

K: I didn't see any resemblance. I don't know how they could have got it so wrong! Zac Efron would be 1000 times better looking than Matthew Perry when he is older!

A: Calm down. How many pieces of eye-candy will you give 17 Again, Kathy?

K: Two and a half out of five.

A: I will give it the same.

The Reader



A: Kate Winslet thoroughly deserved her Oscar for her performance in The Reader. However, there is something oddly disturbing about this movie. I don't know whether it is the mildly paedophilic love story, or the fact that Kate Winslet's character gets off on people reading to her?

K: Read to me, Andy.

A: Shush!

K: Actually, I agree with you.

A: That you should be quiet?

K: No, that this movie sucks. It was way too drab. I struggled to make it to the credits on this one, and was secretly wishing we didn't come out to the cinemas for most of the movie.

A: Be more specific with your criticism.

K: Ok, nothing happened. She screwed a kid, and then cried about losing him when she went to gaol.

A: Fair synopsis, Kathy.

A: How many books are you giving The Reader?

K: Two out of five.

A: I'll give it two books as well.

Mirrors



A: Completing the trio, we have Mirrors. I really can't be bothered discussing this one though.

K: You're so lazy. Mirrors delivers a scare, and this fact is of no surprise, given that the film is from the same director of The Hills Have Eyes (well worth a watch if you are into horror movies!). There are a few disgustingly grotesque scenes in Mirrors, that had me questioning what it is, precisely, that the Australian Office of Film and Literature Classification actually does.

A: You mean the part where -

K: (interjecting) Don't spoil it for the readers, Andy.

A: You just want people to suffer, like you suffered. You're so sadistic!

K: True (crying) - I couldn't look into mirrors for weeks after this movie ... anyway, back to the plot. Kiefer Sutherland (who plays an alcoholic police officer) discovers that there is an evil spirit within the mirrors of an abandoned warehouse he is hired to guard. The spirit essentially possesses those that look into the mirror and forces them to commit suicide. The mirror sends him a message ("Esseker") and he embarks on a sojourn to find out who or what this word means, in order to prevent the mirrors from striking again.

A: And what about the final scene, that really was something!?

K: Yes, one of those totally unbelievable scenes where horror is somehow transposed into comedy. That thing just wouldn't die!

A: It had me laughing. How many reflections will you give this film?

K: Three out of five.

A: I will give it three and a half, just because I enjoyed watching you scream!

Traunch Rating: Triple-flop

A Reflection on the Study of Administrative Law

In our studies of administrative law last semester, we discussed the important issue of natural justice and whether or not those who have had their rights, interests or legitimate expectations affected have a right to an oral hearing.

The meaning of natural justice is synonymous with procedural fairness, and the terms are often used interchangeably. The rules of procedural fairness encompass three broad areas;

• the right to a fair hearing (audi alteram partem);
  
• the right to an unbiased decision maker (nemo judex); and
  
• the rule that decisions must be based on logically probative material.
  

Interestingly, the rules of procedural fairness have a much broader usage, and extend beyond the realm of judicial decision making. As early as 1874, the House of Lords in the case of Wood v Woad recognised that the rules of procedural fairness apply to any tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences.

An interesting case study

It would come as no surprise then, that the International Cricket Council (ICC), and the Cricket Appeals Commission (CAC), as bodies that make decisions on matters that significantly impact upon cricket player's lives, must also observe the rules of natural justice. An interesting case in point is last years test series between Australia and India.

The Facts

• Guatam Gambhir (India's opening batsmen) was involved in an on-field physical altercation with Australian all-rounder Shane Watson.
  
• The events resulted in a two match suspension being meted out to Gambhir by the ICC for striking Watson.
  
• Gambhir then lodged an appeal to the Appeals Commission against the ICC decision, claiming that he had the right to make representations at an oral hearing before the Commission, along with the right to access video evidence of the altercation to prepare his case.
  

Analysis of the legal issues

Justice Albie Sachs (the Appeals Commissioner), who heard Gambhir's appeal, correctly recognised that Gambhir was entitled to natural justice both before the ICC, and in his subsequent appeal to the Commission. However, consistent with the case law, Sachs J decided against allowing Gambhir an oral hearing, and access to video footage for the purposes of his appeal to the Commission. The decision was the correct and preferable one for the following reasons:

• The rules of natural justice have a 'chameleon-like' quality, and the content of the duty depends on the facts and circumstances of every case. Contrary to popular belief, not every matter requires an oral hearing: see Justice Brennan in Kioa v West.
• An opportunity to make written submissions will usually suffice, especially where distance is an issue, and where a speedy resolution of the case is required (as they were in this case).
• Furthermore, where it can be said that the procedure viewed in it's entirety accords natural justice, it may be lawful to deny an oral hearing where one has already been granted at an initial or earlier stage. In the present case, as Sachs J states, Gambhir had already received an oral hearing on the 30th of October, where he viewed the video evidence and pleaded guilty to striking Watson.
• Finally, Justice Sachs stated that he had not been supplied with any reasons as to why an oral hearing would make any material difference to the outcome of this case.
  

Ultimately, Justice Sachs found that the only issue to be determined on appeal was whether or not the appropriate sentence had been meted out to Gambhir.

In light of this analysis, it is vexing to understand how N. Srinivasan of the Indian Cricket Board, along with some sections of the Indian cricket blogging community could be so critical of Justice Sachs' decision.

A Reflection on the Study of the Law of Equity

Last year marked my first foray into the law of equity and trusts. Before the semester started, I remembered purchasing materials that had a combined page count in excess of 3000 pages, and thinking, 'wow, this is going to be a challenge'! I then subsequently spent a portion of my holiday (and semester) in the quest to decrypt the purple beast. For the uninitiated, the purple beast (although the colour may have changed with the printing of a new edition?), is Meaghre Gummow and Lehane's, 'Equity: Doctrines and Remedies'. It's essentially, the practitioner's reference guide to the law of equity.

One of the most interesting aspects I encountered was the notion of the 'fusion fallacy', a term coined by the authors of the purple beast.

According to the learned authors, a 'fusion fallacy' occurs whenever an;

• equitable remedy is granted for a common law cause of action; or where a
• common law remedy is granted to relieve the breach of an equitable obligation.

In Australia, the mixing and matching of these equitable and common law doctrines has historically been regarded as heretical.

However, this view has not been without criticism, and counter-veiling views have been expressed by other judges, lawyers and academics. For instance, in some foreign jurisdictions, there have been strong judicial decisions rebuking the orthodox position; maintaining instead, that the Judicature Acts (which allowed for the concurrent administration of the common law, and equity within one court) intended complete substantive as well as procedural fusion. Putting it colloquially, this is like throwing all causes of action, defences and remedies into one big cocktail: see for instance, the judgment of President Cooke in the New Zealand case of Aquaculture Corp v New Zealand Mussel Co Ltd.

The debate about fusion in Australia is not over

In a recent speech at the Queensland University of Technology, Justice Kirby fired a parting salvo at the fusion doctrinaires of the High Court. Speaking on several issues, Kirby J took the opportunity to admonish Gummow and Heydon JJ for their staunch and inflexible attitude to the development of equitable jurisprudence.

In doing so, Justice Kirby alluded to, and endorsed the powerful dissent of President Mason (as he then was) in the New South Wales Court of Appeal case of Harris v Digital Pulse, where Mason P stated that there was nothing expressly limiting the possibility that a degree of substantive fusion could take place in certain areas of the law. However, Kirby J did begrudgingly accept that the majority views of Chief Justice Spigelman and Justice Heydon in Digital Pulse, were still reflective of the currently accepted position in Australia. In Digital, the majority Justices found that the law of equity was incapable of recognising that exemplary or punitive damages (a common law concept from the law of tort) could ever be available for the breach of a fiduciary duty (an equitable obligation).

No cracks in the orthodoxy

On the 10th of December (2008), the case of Giller v Procopets was handed down by the Victorian Court of Appeal. One of the issues the Court had to decide was whether or not punitive damages, could be awarded for breach of confidence (another equitable obligation).

In Giller, the majority of the Court, comprising Ashley and Neave JJA (Maxwell P agreeing), conformed to the orthodox view that to award punitive damages woul be doctrinally incorrect, however their Honours were not prepared to elaborate on the reasons for the decision. The case demonstrates that there are no cracks appearing in this area of the law, despite the convincing and scholarly arguments put forward by Mason P in Digital Pulse - judges are simply not prepared to deviate from tried terrain.

At a wider level, the case also demonstrates that litigants are still prepared to argue the case for substantive fusion, and that these issues are not merely abstruse questions argued about in lecture halls and seminar rooms of universities. Instead, they are of practical significance, and have the potential to cut to the very foundations of our legal system.

In one sense, the orthodox views on the issue are understandable, in that they promote certainty, consistency, and continuity with the existing law. But however strongly one feels that the confluent streams of equity and law should never mingle, it is easy to forget that the judiciary is often involved in the expansion and contraction of doctrines and remedies within both areas. To suggest that neither stream of the law could ever recognise a remedy particular to the other is shutting one's mind to the beneficial possibilities that could potentially flow from a more liberal attitude to the development of our equitable jurisprudence.