It seems Mr Trkulja has now named his elusive "Senior Australian Defamation QC" and it turns out to be a solicitor who seems to have a very dim understanding of how to communicate civilly and without showing confrontational bias on their clients behalf. Not to mention complete lack of understanding with US law, reciprocity, comity, and even parts of relevant Australian law too it seems.
I'm also wondering if they have held themselves out to be a QC/SC to their client (which would be a huge problem for them) or that their client is just a blithering egotist with a few too many roos loos in their top paddock (translation: batshit crazy)... I'll go with the last one.
It also seems that as part of the appendix/addendum to the letter that a whole heap of extraneous and non relevant comments have been included with mine being in their as well. Does Mr Gibson imply that myself is also a party to these matters? Does he really want to cast a wide net and capture huge sharks that neither he nor his client really want to antagonise into making themselves and the firm of MO a nice hobby of distraction for someone who likes a challenge and loves making examples?
As to the letter itself. From first read I am of the opinion that: * Mr Gibson and his client reside within the State of Victoria where 'gangster' is also used as a slang term; * Mr Gibson and his client reside within Australia where both 'arrogant' and 'poorly researched' commentary are NOT actionable under any Act nor legislation whatsoever, though Irony is absolutely held up to be ridiculed and condemned. * Mr Gibson by virtue of his antagonistic tone, threatening bluster and lack of candor should consider doing a LOT of CPD with emphasis on E&PR; * That Mr Gibson's client has shopped around until he has found a Firm idiotic enough (or IMO hungry enough) to take up his alleged wrong; * That Mr Gibson mentions two 'concerns notices' with one (by his client) that could not of been a concern notice under the Act and even one that is irrelevant to Techdirt since it is to another entity entirely (Though I'm wondering if counsel for Google will understand why their concern notice - if they got one - has now been enjoined with this one - could this itself be a breach of privacy under Australian APP laws or worse - only time will tell); * That Mr Gibson's client based on patterns of behaviour over the last number of years could be a prime contender for an LRO (limited or extended) under the brilliant Victorian Vexatious Proceedings Act (2014) that now due to the attached comment section anyone in their (especially including myself) has a sufficient interest in the matter for standing.
As to the "not for publication" bold type, Mr Gibson like anyone in his position knows that it is pure bluster and intimidation and has no legal weight within Australia, or anywhere, whatsoever (even the stock template footer has no legal weight and is just a standard CYA statement) and like a lot of bullies will be quite unhappy and will most likely act out when called on it (a bit of due diligence before sending these sorts of things would go a long way to stop being looked at as a fool - though I digress).
Now to the "One could not conceive a more defamatory reference than that" statement in relation to the calling of someone a gangster in Australia. Mr Gibson like his client needs to consider all bane and antidote context and actually get out into the actual community at large and listen. Even a few hrs inside the local Magistrates' Court whilst in session would remove you of that fallacious idea, or just stay in the marshmallow sensitive and constrictive cave you currently seem to both reside in.
Personally I would normally just refer you to the reply in Arkell v. Pressdram (1971) [unreported] but hey I'm bored and need a new hobby.
>>Now they explicitly demand that these clients make it clear they are not endorsed by LEGO when they use that channel to buy LEGO bricks
no.. LEGO asks them nicely. The purchasers can STILL refuse to state whether Lego endorses them or not. There is NOTHING Lego could do to the purchasers if they refuse to make a statement.
As for the discount.. Well LEGO is being looked at closely by the Consumer law powers that be in Australia for restriction on trade having an arbitrary structure on who can and cannot purchase at a discount. As for LEGO's politics?? Have you actually researched the History of LEGO and the Company behind it?
Re: Re: Re: Re: Re: Actually, it's really quite easy to record phone calls.
>>>> my take is that it doesn't apply when your listening to (and recording) the conversation you're having at the endpoint (not 'over a system'), and especially when it's coming out of the speakerphone.
Sadly it also applies to the recording of audio coming out of a telephonic device by an external microphone etc.. Remember those suction cup microphones you could stick onto the old phones? They were illegal in Australia too :(
Our Recording/Surveillance laws are mostly all State based (and are somewhat different between the different State's) whereas actual interception of ANY communication system (tapping or using an external device) is absolutely verbotem.
Now if the device comes with it's own inbuilt recording device like most mobile phones do (or as Answering machines did) then it is quite alright under the Commonwealth (Federation of Australia) Law though might get you in trouble with the State laws..
>>> Your ideas may hold water if this was a criminal case in NZ, which it is not.
I never said it was, in fact its an administrative case that has to abide by criminal structures and ALL procedural fairness principles. Which is why I stated that AFTER all appelate judgements is the time to argue the points you are arguing.
>>> Honestly, if Kim is innocent, don't you think he would have long since come to the US to get this over with?
The principle of in dubio pro reo (which the US is supposedly all about) states otherwise. And I really cannot contemplate how you could even think that since it is equivalent to the "If you've got nothing to hide, you've got nothing to fear' fallacious argument. It is up to the plaintiff (The USG) which is also the prosecution to prove that all the elements of the extradition are met. In my Legal opinion they are not.
They are not trying to argue the criminal case (which it will be if sent to the US), far from it. They are specifically arguing the elements of extradition.
>>> He's arguing in NZ because they have a soft legal system with many ways for people like Kim to delay things for years.
WTF!!! Soft? you have just insulted the whole of the New Zealand legal system as well as Australia's and to a lesser extent Canada's and England's(UK).
Are you saying that all these law gruduates/students that are made to purchase style books that will never be normally used in the real world (our courts and tribunals are exactly the same as yours it seems) are being misled?
>> Selling access to it (under common law) amounts to a fraud
And here is the real sticking point, and what the appeals should (and most likely will) be based upon. Fraud, or false representations in this regard (though it might be a part of US case law) is NOT part of NZ law.
Dawson has done some fancy juggling of outlier cases here that are not IMO contextually relevant at all which means there should be no preponderance whatsoever.
Luckily NZ like other common law countries has a great appeal process that is also quick, Federal, and highly unbiased (2 of those are very unlike the USA - you can decide which ones).
I'll wait till I read the appeal and any appellate judgments until I make major overreaching statements here,. Though the 'fraud' and highly dubious 'laundering' charges are going to cause lots of handwringing by all sides.
Well this is a start to Consumer laws that the rest of the Planet (EU, Aust/NZ, etc) has had for over 30yrs or more [1975 was when Australia got our first major consumer laws].
Soon if you are all mature enough you might get to the stage where things like:
* Reasonable for life of product warranties are statutory (ie: Washing machines/Refrigerators have 10yrs or more life) * If something is not fit for use or as advertised the consumer (not the seller) gets the choice of Refund, Repair, or Replacement [ and for serious faults this extends to life of statutory warranties] * everything goods and services are covered. That includes cars, Houses, and other MAJOR purchases. * Corporations can not in any way shape or form be defamed. * Mandatory and Binding arbitration is an instantly voidable term in any contract for goods and/or services [though Business to business contracts ONLY have some binding arbitration ability still] * Anyone can compare one product to another no matter what a EULA can state.
It will take time, but maybe in the far distant future (probably another 30yrs) you too will have all the above.
Here read this article by an eminent Australian QC on why Australian defamation laws are absolutely not going to be allowed under your Speech Act because there are NON, NADA, ZIP protections for publishers in any way shape or form in this regard. No s230 counterpart or anything..
Trkulja is in the Aussie vernacular.. 'pissing up a rope'
It seems that Mr Trjulja went and saw "The Senior Australian Defamation QC" (what ever the flying fuck that is) who advised him that [at 17] "the posting is of and concerning to my reputation" (sidenote: any SC/QC who is advising a client, especially considering the barrister/solicitor structure, of this specificity needs to be instantly slapped with an ethics violation and/or struck off)
Maybe he should of seen a real one first. I don't know maybe one who is actually a QC, a member of the Victorian Bar, a Senior Fellow of the Melbourne Law School. Who is also the esteemed author of three editions of The Law of Defamation and the Internet (2001, 2005 and 2010) and of Collins on Defamation (2014) which are tomes used by all Australian solicitors, law schools, and barristers.