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Paris Nesbit KC
4 November, 2005  
Tempest by the Torrens

The Adelaide courts have been much taken up with Lion Nathan’s hostile bid for Coopers … the footballer who wants workers’ comp for on-field injuries … and the state’s insistence on privilege in a case brought by a stolen child


imageThere’s been much afoot in the former Athens du sud since I last filed. In particular, the state has found itself in the courts in some high profile cases, which is at least a change from the government getting into the courts.

Anyone with a touch of malice in their hearts – for whom, try the Crown and Sceptre Hotel across the road from the Supreme Court, and test the cab-rank rule in the front bar – will be enjoying the irony that the state’s current and dire litigious battles concern matters from well before the present incumbents parked their bottoms on the treasury benches in early 2002.

First, the skittles, aka football. One Shane Bond, who played for the working people’s 2004 premiers Port Power, drifted out of AFL football after some discouraging injuries during the 2000 season.

At the time, there was in force what seemed like a perfectly valid regulation, dating from 1999, excluding those who made a good living out of professional sport from workers’ comp. But when the previous excluding regulation, dating from 1991, was found to be invalid (Epstein and Morton v Workcover), Shane was encouraged to have a crack at the similar exclusionary regulation of 1999.

Because of changes to the workcover legislation during the 1990s, the basis for invalidity in what is known as Morton’s case (he being the more famous of the footballing plaintiffs) no longer existed.

To knock off the 1999 exclusion and dip his hand into the workcover pot young Shane has to show that subsection 3(8) of the Workers Rehabilitation and Compensation Act 1986 had not been complied with. The sub-section says that a regulation excluding classes of workers from benefits can only be made after consultation with the Workcover Advisory Committee.

The paper trail about that consultation is equivocal. It only arises because of a quaint South Australian provision that all regulations must be reviewed and, if still required, re-made, every 10 years. The 1999 regulations, maintaining among other things the then-existing exclusion of sports professionals, are the outcome of just such a review, and it is at least clear that the fact of the review came into the advisory committee’s in-tray.

imageThe questions for Justice Tom (“Mad Hatter”) Gray (seen here) are: First, how much consultation is enough when you are simply re-making an existing exclusion? Second, if there has not been enough, do the principles in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 get the government, and the beleaguered Workcover, over the line?

Happily, there is nothing in the Hatter’s youthful exploits to suggest that his adjudication will be coloured by over-familiarity with the hazards of playing serious AFL football.

* * *

Hatter is also the judicial star of the other big one involving the state – Trevorrow v South Australia, in which he gave a painstakingly thorough interlocutory judgment the other week rejecting a claim of privilege asserted by the state: Trevorrow v State of South Australia No 2.

Trevorrow is an Aboriginal man who these days lives down by the Coorong, which South Australians know has become dangerously saline because of the reckless rate at which fiendish Victorians and New South Welsh suck precious water out of the Murray.

He has launched a multi-pronged claim against the state which, he says, wrongfully separated him from his family and took him into state care in late 1957, when he was barely a toddler.

One limb of Trevorrow’s case turns on the bureaucrats and other authorities knowing they were acting beyond power in the way they carried out his removal. Most of the documents over which privilege is being claimed involve legal advice, references to it, or other comments about practices which Trevorrow says were not lawful.

The curious feature of the claim of privilege is that the Aboriginal Legal Rights Movement had been given access to many of the documents in the course of the Bringing Them Home inquiry; others (and parts of others) they had got through freedom of information requests; and still others had actually been published by a friendly researcher.

Gray J would have none of the state’s privilege claim: the documents had been pleaded into relevance, the paramount interests of the child who had been taken into guardianship outweighed the claim of privilege and, anyway, to the extent that the documents or parts of them had been let go, any privilege which might have existed had been waived.

But the state, undeterred, presses on. Leave has been given to appeal against some of this.

* * *

Time for a beer? Lion Nathan still wants a Coopers, for which it is prepared to pay $230 a share; but the directors of what was once a family brewery, and still seems to run pretty much like one, have set their faces against the offer and have so far persuaded the Supreme Court that Coopers is free to knock off Lion’s third-tier pre-emptive right of purchase of available shares in the local brewer of cloudy ales.

imageThis had been written into Coopers’ articles before the Japanese Kirin acquired an interest in Lion, which the court said changed the game.

Lion, for its part, is beavering away in the Federal Court, working some of the less loyal of the mostly family-linked 117 members, and setting up avenues for exploring how it is that the Coopers’ board, which controls the purchase of available shares and the price, set the price at $45 last time any shareholders wanted to get liquid. And there are still bidder and target statements to come.

Throw in a long-running testamentary dispute over the rightful carve-up of a parcel of about 120,000 shares which can’t be voted until that little tussle is resolved – which may have something to do with Justice John Perry giving the parties a smack and telling them to stop taking interlocs and get ready for trial pronto – and it is almost enough to turn your beer sour.

Not Darren Lehmann’s, though. Boof has been doing image-building ads for Lion Nathan, which owns the West End brand through which its sponsorship of the SA cricket team is channelled. Given the dreadful performances of the Redbacks against the Blues, Lion may want to re-think its marketing.