Drafting

Rafailidis v Camden Council [2021] NSWSC 1087 features the following comment on drafting 

The summary of the claims made by the plaintiffs in their statement of claim that is set out above is not adequate to convey a true sense of the extent and complexity of the allegations made by the plaintiffs. It is a reasonably adequate record of how almost all of the plaintiffs’ claims depend upon and rehearse the allegations of fraudulent conduct by Mr Krillic, Mr Kashro and Mr McIntyre. Those allegations of fraudulent conduct are a constant thread that the plaintiffs weave through all of their claims. The plaintiffs not only claim that the defendant prosecuted all of the proceedings in the Land and Environment Court to further the fraudulent aims of its officers, but, in addition, that the defendant concealed the fraud from the Court. The statement of claim is replete with allegations that the conduct of the defendant – most of which could not practicably be individually identified in the outline set out above – constituted either malicious prosecution or a wide range of dishonourable conduct on the part of the defendant. 

26 I have not been able, in the summary, to convey the extent, the complexity, the obscurity, or the level of repetition in the particulars provided, for a majority of the allegations made by the plaintiffs. The only way to approach an understanding of the statement of claim is to attempt to read it; but the document largely defies comprehension, and the reader will almost certainly be lost before reaching the middle of the document. The person who drafted the particulars may have thought that the plaintiffs were obliged to explain in seemingly endless detail the reasoning in support of their claims. In a substantial proportion of cases, the result has been that the particulars are not readily comprehensible, as they require reference to other sources of information, and they are in any event argumentative. 

27 I am satisfied that an order should be made striking out the statement of claim in its entirety. Any legitimate claims that may reside in the statement of claim are obscured by a thicket of impermissible and obscure allegations and submissions, most of which are not limited to the material facts relevant to any particular cause of action. There is a very substantial level of repetition. The result is that the statement of claim cannot be understood on the basis of a careful reading. A minute analysis is required to attempt the task, and the result is the production of summaries of the individual claims that, at the one time, do not record the full extent of the allegations made, and also do not permit an adequate understanding of the collective effect of the allegations. The level of unnecessary and irrelevant detail and repetition defeats a conscientious attempt to gain an adequate, fair and balanced understanding of the claims made by the plaintiffs. 

28 Furthermore, the mixture of prayers seeking the setting aside of orders of the Land and Environment Court, with a substantial number of claims strewn throughout the pleading for declarations as to the effect of matters dealt with by that Court, along with a welter of disconnected allegations of wrongdoing by the defendant, impose on both the defendant and the Court an oppressive task of discrimination between claims that may be justiciable in this Court, and claims that are not. 

29 The statement of claim is, in my opinion, within that relatively extreme category where its deficiencies defeat any reasonable attempt at analysis and segregation of the good from the bad, so that the proper course for the Court to take is to strike out the statement of claim in its entirety. 

30 I have not attempted to match the myriad of pleading deficiencies in the statement of claim with the individual pleading rules accepted by McCallum J in Seidler. That would be an entirely senseless exercise, as, in various combinations, many of the deficiencies identified by her Honour applied to nearly every one of the allegations made in the statement of claim. 

Deficiencies in the manner in which fraud is pleaded against the defendant 

31 There is a further fundamental deficiency in the statement of claim, which separately justifies an order that it be struck out in its entirety. That is that, in my view, substantially the whole of the claims made are dependent upon allegations of fraud that have not been properly pleaded, and are fundamentally oppressive to the defendant, and unfair to the officers of the defendant against whom the allegations have been made.

SOCI

The report by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) into the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and the operation, effectiveness and implications of the Security of Critical Infrastructure Act 2018 features the following recommendations - 

Recommendation 1   

that the Security Legislation Amendment (Critical Infrastructure) Bill 2020 be split in two, so that the urgent elements of the reforms contained within the government assistance measures in proposed Part 3A, with the definitions and meanings of expanded critical infrastructure sectors and assets, and other enabling provisions contained within proposed amendments to Part 1, Part 2B, Part 4, Part 5 and Schedule 2 of the current Bill, be retained, amended in line with the principles outlined in paragraph 3.18 of this report, and legislated in the shortest time possible (Bill One). 

Recommendation 2   

that proposed Part 2B of the Security Legislation Amendment (Critical Infrastructure) Bill 2020 be retained in Bill One, and that Part be amended to: extend the requirement under proposed section 30BC for formal written notification to be made by an affected entity within 84 hours if an initial oral notification is given when a critical cyber security incident is having a significant impact on the availability of the critical infrastructure asset the entity is responsible for; and that proposed sections 30BC and 30BD be amended to allow for an entity and the relevant Commonwealth body to agree that a written notification is not required for an incident, if upon investigation it is agreed that the incident does not meet the requirement of an incident or does not have the defined impact outcome.

Recommendation 3 

that the rules to be designed for the purposes of amended Part 2B of the Security Legislation Amendment (Critical Infrastructure) Bill 2020 be developed in consultation with relevant entities and incorporated into explanatory material to Bill One. 

Recommendation 4   

that Bill One include a provision that as soon as practicably after a government assistance measure is directed or requested the Parliamentary Joint Committee on Intelligence and Security be notified in writing about the circumstances, actions, status and parties involved in each measure used relative to any cyber security incident. 

Recommendation 5   

that, subject to the amendments outlined above, the resultant Security Legislation Amendment (Critical Infrastructure) Bill (Bill One) be passed. 

Recommendation 6   

that the Cyber and Infrastructure Security Centre within the Department of Home Affairs, be reformed to additionally provide technical support and advice regarding the functions of Bill One. 

Recommendation 7   

that the remaining non-urgent elements of the current Security Legislation Amendment (Critical Infrastructure) Bill 2020 not recommended for inclusion in Bill One, be deferred and amended into a separate Bill (Bill Two) in line with the principles outlined in paragraph 3.49. 

Recommendation 8 

 that Bill Two be amended in consultation with key stakeholders, released for feedback and with further consultation on incorporated amendments based on that feedback, prior to being reintroduced to Parliament. Once reintroduced, Bill Two should be referred to the Parliamentary Joint Committee on Intelligence and Security for review, with a concurrent review of the operation to date of the amendments to the Security of Critical Infrastructure Act 2018 resulting from Bill One. 

Recommendation 9   

that any rules to be designed under Bill Two be co-designed, agreed and finalised to the extent possible before the introduction of that Bill and made available as part of the explanatory material for the Bill. 

Recommendation 10   

that proposed Schedule 2 of the Security Legislation Amendment (Critical Infrastructure) Bill 2020 be amended in accordance with the principles outlined in paragraph 3.62 and included as part of Bill One. 

Recommendation 11   

that subsection 13A(2) of the Intelligence Services Act 2001 be amended to restrict cooperation or assistance provided by an agency under that Act to agencies or other bodies by regulation outlined in subsection 13A(1) only to the functions and extent authorised by other Commonwealth legislation. 

Recommendation 12 that the Government review the risks to democratic institutions, particularly from foreign originated cyber-threats, with a view to developing the most appropriate mechanism to protect them at Federal, State and local levels. 

Recommendation 13 

that the Government review the processes and protocols for classified briefings for the Opposition during caretaker periods in response to serious cyber-incidents, and consider the best practice principles for any public announcement about those incidents. 

Recommendation 14 

that the Bill One include a provision that the Parliamentary Joint Committee on Intelligence and Security may conduct a review of the operation, effectiveness and implications of the reformed security of critical infrastructure legislative framework contained within the Security of Critical Infrastructure Act 2018 not less than three years from when that Bill receives Royal Assent.

Cryo

In 'Thawing Out Personhood, Unconscionability and Succession in Cryonics' in (2020) 17(1) Canberra Law Review 44-77 I commented 

The adoption of cryonics poses fruitful questions about personhood, consumer protection, trusts, taxation, crime, human rights and other law. Cryonics involves the long term storage of human cadavers at subzero temperatures with an expectation that in the indefinite future the legally dead will be ‘reanimated’. The article discusses the culture and law of cryonics in relation to Australia. It draws on Martha Fineman’s vulnerability theory to critique claims by proponents of cryonics, asking whether unsubstantiated claims regarding reanimation are unconscionable and necessitate a specific statutory prohibition. The article further considers the implications for health, welfare and other law if cryonics was practical. 

Cryonics remains a matter of hope - in my opinion egregiously misplaced hope - over science, accompanied by inadequate regulation. Concerns regarding practice are evident in an item in today's Slate - 

 Two weeks ago, police in the Moscow region received a call about an unusual robbery and were ordered to stop a truck belonging to the suspect. On a platform attached to the vehicle, they found containers with frozen bodies. They belonged to people who agreed—and paid money—to be frozen after death in the hope of being revived in the future, a practice called cryonics. (It’s legal in Russia as well as in the U.S.; former baseball player Ted Williams’ head and body are each frozen, separately, at a cryonics facility in Arizona.) It’s unlikely cryonics will ever work. But for people who think there’s a chance, the safekeeping of the bodies can be seen as a life-or-death matter. 

The woman who allegedly tried to steal bodies was Valeria Udalova, a former CEO of the cryonics company KrioRus, founded in 2006. The man who accused her of theft was her ex-husband, Danila Medvedev, also a former CEO of KrioRus. Both Udalova and Medvedev now own separate cryonics businesses and are in the midst of a battle over 81 bodies of KrioRus clients. 

It came to a head on Sept. 7, when Udalova reportedly broke into the cryostorage near Moscow, which is now under the control of Medvedev (though Udalova claims that she rents this facility). According to the Medvedev`s team, Udalova and her partners cut through a metal wall at the lab, dumped liquid nitrogen from containers with dead bodies, and loaded the containers, known in the industry as “dewars,” on the truck. When workers lifted the heavy vats, the dewars were bending like they were going to fall and break, as a leaked video shows; meanwhile, liquid nitrogen was pouring out and spilling on people. “Even paying much for your death in Russia can’t save you from being a part of the criminal conflict,” wrote one Facebook user who had watched the video.

Trade Secrets

'Trade Secrecy, Factual Secrecy and the Hype Surrounding AI' by  Sharon K. Sandeen and Tanya Aplin, in Ryan Abott (ed) Research Handbook on Intellectual Property and Artificial Intelligence (Edward Elgar, forthcoming) comments

Access to and sharing of anonymized machine-generated data and the transparency of data analysis techniques has taken on vital importance in a world characterized by artificial intelligence, particularly machine learning'. In short, this chapter interrogates the extent to which such data and algorithms may qualify as 'trade secrets' under US and EU trade secrets law, focusing in particular on whether the definition of a ‘trade secret’ is met. We show through the use of two case studies – involving autonomous vehicles and credit scoring – and a close analysis of the trade secrets definition that the claim of trade secrets protection is overstated. The greater risk relates to factual secrecy rather than legally protected trade secrets and the policy debate needs to shift to assess what regulation, if any, there should be of data that is simply kept secret. 

Moors

'The Sovereign Citizen Movement: A Comparative Analysis with Similar Foreign Movements and Takeaways for the United States Judicial System' by Mellie Ligon in (2021) 35(2) Emory International Law Review 297 comments

he Moorish Sovereign Citizens Movement began as an offshoot of the overarching Sovereign Citizens Movement in the United States in the 1990s by former followers of the Washitaw Nation and Moorish Science Temple of America. The Moorish Sovereign Citizens Movement follows an anti-government ideology, based in the idea the current American government is illegitimate and has been operating under false pretenses since as early as the 19th century. Though disagreement among the members of the movement regarding what spurred this covert change from a legitimate to an illegitimate government exists, examples of the different catalysts include the U.S. abandonment of the gold standard in the 1930s and the Reconstruction Era of the 1860s and 1870s following the U.S. Civil War. Members of the movement live scattered across the United States and do not follow a single ideology or teaching, but they all engage in similar tactics of disruption—levying false liens against government officials they deem have wronged them, filing countless motions to flood the system, and employing a nonsensical legal language of their own in court appearances and filings. This comment engages in an overview of this movement in the United States and subsequently compares it to parallel movements in Canada and Ireland, specifically by looking to their cases involving individuals with similar ideologies and tactics. Finally, it discusses takeaways from non-U.S. movements for potential application in the U.S. setting.  

Ligon states

Sovereign citizens claim that “there are two types of law: common law and admiralty law[,]”which emerged from this covert government switch. They also contend the U.S. government “has been operating under commercial law” since it abandoned the gold standard in 1933. Under this belief system, commercial law is equated with the law of the seas, admiralty law. Therefore, sovereigns argue, the fact U.S. courts have been operating under admiralty law has deprived all Americans of the common law court systems designed by the Founding Fathers ever since 1933. This deprivation to a sovereign citizen means that American courts have no jurisdiction unless they receive explicit consent from those upon whom regulations or sanctions have been placed. 

Followers contend that because this fake government backs U.S. currency by the “full faith and credit” of the U.S. government, the fake U.S. government uses its citizens as collateral “by selling their future earning capabilities to foreign investors, effectively enslaving all Americans.” Sovereign citizens posit this citizen collateral occurs at birth when the government forces parents to apply for Social Security cards and birth certificates for their newborn children. According to this assertion, the birth certificates create a corporate shell account for each newborn child in the United States, and the capitalization of all letters of the names on the certificates represents the straw man identities of each child. Consequently, when an individual’s name is spelled with normal capitalization (e.g. “John Doe” instead of “JOHN DOE”), it represents the individual’s “‘real,’ flesh-and-blood” name. The straw man theory and belief in the illegitimacy of the government work in tandem. Followers believe all legal proceedings are financial transactions because they presume the United States has been administering the legal system under commercial law since the abandonment of the gold standard in the 1930s. They then erroneously interpret the Uniform Commercial Code and maintain they are therefore not citizens of the United States due to this bait-and-switch by the U.S. government. Followers rely almost exclusively on the Uniform Commercial Code and most do not pay taxes, register their vehicles, use postal codes, or maintain driver’s licenses. 

'A Revolting Itch: Pseudolaw as a Social Adjuvant' by Donald J. Netolitzky in (2021) 22(2)Politics, Religion and Ideology 164-188 comments 

Pseudolaw is a collection of legal-sounding but false rules that purport to be superior laws suppressed by conspiratorial actors. Pseudolaw replaces conventional law. Modern pseudolaw emerged around 2000 in right-wing and often racist US Sovereign Citizen communities, but has subsequently spread world-wide to groups with diverse political, racial, economic, and social objectives. Pseudolaw purports to shift authority away from state and institutional actors and to individuals, and is attractive to dissident groups who resist conventional authority. Pseudolaw is politically agnostic since pseudolaw does not change or create the ideologies and objectives of these dissident groups, but instead empowers them. Pseudolaw aggravates interactions between its host populations and conventional government, court, and law enforcement actors. As pseudolaw expanded outside of its Sovereign Citizen incubator, pseudolaw ceased to be sequestered knowledge taught by gurus and held by privileged groups. Pseudolaw has merged into the cultic milieu: a collection of rejected and marginal ideas, resources, and history. A broad range of conspiratorial and outsider communities and individuals mine the cultic milieu. In this context pseudolaw has become a separate legal system available to those who seek a different explanation for law, and the extraordinary privileges and immunities that pseudolaw falsely promises.