03 May 2014

ABA nominates own members to resolve “austbar” name dispute

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Another year, a new president and another law suit from the Australian Bar Association (ABA).

Eschewing the opportunity to engage in a dispute resolution process with The Hon Murray Gleeson AC QC former Chief Justice of the High Court or The Hon Michael Kirby AC CMG former Justice of the High Court and current chairman of the UN Commission of Inquiry into Human Rights in North Korea, either of whom could have brought objectivity and legal insight to the ABA, it has instead opted to litigate.

Paying $4,500 of their member’s money for the filing plus their legal costs (one assumes little change from $10,000) they have lobbed a 30 page application plus 500 pages of annexures, to initiate a dispute process with the World Intellectual Property Organization (WIPO) over the domain name <austbar.com.au>.

Not content with the usual single arbitrator selected by most claimants, the ABA has selected a three-member panel normally associated with complex disputes. The ABA has also specially nominated the arbitrators they wish to have appointed to hear their dispute.

International arbitrators of distinction? No, it is a home grown selection of experienced Australian arbitrators and members of the WIPO panel, though Melbourne only:

  • Mr Des James Ryan, a highly experienced intellectual property solicitor
  • Mr Staniforth Ricketson, a distinguished Melbourne academic and barrister
  • Mr Warwick Rothnie, a Melbourne barrister with a PhD from the University of London.

All of the nominated panelists are highly qualified intellectual property experts. But wait, a quick review of their biographical data filed with WIPO shows that:

Desmond Ryan, was the past Chair of the Intellectual Property Committee of the Law Council of Australia, of which the previous ABA president, Melbourne based barrister, Michael Colbran QC, is the current president.

Sam Ricketson and Warwick Rothnie, are both practising barristers, members of the Victorian Bar and therefore members of the ABA.  Annexure 1 filed by the ABA, being its own constitution reads:

“the members of the Association [ABA] shall consist of the practising barristers who are members from time to time of … the Victorian Bar”

One could have no qualms that Messrs Ryan, Ricketson and Ronnie, as lawyers and experienced WIPO arbitrators would have any difficulty applying an independent mind to the assessment and fair determination of the dispute raised by the ABA.

However, our judicial system requires the application of an administrative process which complies with the rules of procedural fairness. Those rules, worked out and applied in administrative Tribunals and Courts throughout Australia, provide that justice must not only be done but also be seen to be done.

On that basis, it is hard to see how current members of the ABA, the very organisation raising the dispute could be recommended by it, to hear and determine the ABA’s own claim?

One assumes that the new president of the ABA, Mark Livesey QC, the former president of the SA Bar Association, has read and approved the submissions and selection of the arbitral panel. The application has been lodged in his own name as he has been personally authorised to act on behalf of the ABA, which being an unincorporated organisation, lacks the legal persona to bring the claim.

Probably unknown to the solicitors acting for the ABA, every WIPO arbitrator, before they can enter onto a reference, is required to assent to a Statement of Acceptance and Declaration of Impartiality and Independence.  That declaration requires the arbitrator to state:

“I am independent of each of the parties.  To the best of my knowledge and belief, there are no facts or circumstances, past or present, or that could arise in the foreseeable future, that need be disclosed as they might be of such a nature as to call in to question my independence in the eyes of one or both of the parties.”

It is impossible to see how any of the arbitrators recommended by the ABA could fulfil this obligation and to name and recommend them only puts them in the invidious position of having to refuse the appointment.

Like a bunch of clowns, the actions of the ABA would be good for a laugh, if the subject matter, the proper administration of a legal dispute, was not so serious a matter.

Another fantasist had the measure of it.  English author Charles Lutwidge Dodgson (aka Lewis Carroll) told the story in Alice’s Adventures in Wonderland of the mouse, with the “long and sad tale”:

Fury said to a mouse, That he met in the house, “Let us both go to law: I will prosecute YOU.—Come, I’ll take no denial; We must have a trial: For really this morning I’ve nothing to do.”

Said the mouse to the cur, “Such a trial, dear Sir, With no jury or judge, would be wasting our breath.”

“I’ll be judge, I’ll be jury,” Said cunning old Fury: “I’ll try the whole cause, and condemn you to death.“‘

DENOUEMENT

On 20 June 2014, the WIPO Case Manager, Christiaan Broekhuizen wrote to the ABA to advise:

The Center has been unable to secure the appointment of a Panelist on its customary terms from your list of candidates.  Accordingly, you are kindly requested to provide the Center with a new list of names and contact details of three candidates to serve as one of the Panelists.

 

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