The Andrews Government will not reverse VCAT fee hikes that caused a reduction in the number of cases it dealt with. Attorney-General Martin Pakula acknowledged that fee increases “contributed to a substantial drop-off in applications to the tribunal”, but will allow fees to increase by up to 10% for the 2015-16 financial year. He said the Government will work on a new fee structure to be implemented in the following year, as he had promised before the last election. Last year, statistics revealed that VCAT claims fell by 15-35% in lists affected by fee increases. Barrister Michelle Quigley QC warned, “Ordinary people just can’t afford it. It’s contrary to access to justice.”
Sir James Munby, President of the Family Division of the UK Royal Courts of Justice, has issued a scathing judgment criticising lawyers who ignore court limits on the length of pre-trial documents. In Re L (A Child), 989 pages of documents were filed, far more than the 350 page limit set by the Court rules. After reviewing the case the judge determined that only 51 pages of the documents were essential for the hearing. His Honour wrote: “The professions need to recognise that enough is enough. It is no use the court continuing feebly to issue empty threats.” He threatened to impose “financial penalties” and “public condemnation in judgments in which they are named”. If they failed to work, “delinquents will be summoned to explain themselves in open court”. The courts’ frustration with excessively prolix lawyers has a long history, and fines and public shaming are some of the oldest punishments. In the 1596 case of Mylward v Weldon, a solicitor prepared a 120 page document that could have been reduced to 16 pages. As punishment, the English Court of Chancery ordered a prison warden to “cut a hole in the myddest” of the document and “put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward”, before parading him before all of the Courts at Westminster Hall while they were sitting. He was then to be imprisoned until he paid a substantial fine. Plus ça change…
Chief Magistrate Peter Lauritsen has launched a review of the Criminal Justice Diversion Program, which allows people to avoid being prosecuted for a minor crime if they agree to participate in a program. The program was last reviewed 10 years ago, shortly after it was introduced, and the recommendations at the time were about improving awareness of the scheme. This time, a key issue that will be considered is whether “discussions about whether an offender should be placed on an order often occur behind closed doors without the oversight of a magistrate”. This is because under s 59(2)(c) of the Criminal Procedure Act 2009 (Vic), diversion is only available when “both the prosecution and the accused consent”, and some lawyers complain that police veto their requests for diversion before the court has a chance to consider them. In 2011-2012, Deputy Chief Magistrate Jelena Popovic travelled to eight countries to study their approaches to low-level offenders. In addressing diversion, she recommended that “the views of apprehending police officers … be ascertained and taken into account by judicial officers, but the police veto be removed”. In related news, the new Labor Government has committed to keeping the previous Liberal Government’s Youth Diversion Pilot Program in the Children’s Court, which is expected to begin later this year.
The High Court held a ceremonial sitting in Canberra yesterday to mark the appointment of Justice Geoffrey Nettle to the bench. He had formerly been a Justice of the Victorian Court of Appeal. The appointment was made after Justice Susan Crennan chose to retire five months ahead of the Constitutional age limit. While Justice Nettle is regarded as “one of the intellectual leaders of the profession” and “a non-political choice”, the shift in gender balance on the court has been questioned. Writing in the Canberra Times, Professor Kim Rubenstein called for a review of how judicial appointments are made. Rubenstein argues the “backdoor system of affirming men in the top posts” undermines the High Court because we should “ensure that the diversity of our community is reflected in the High Court of Australia and gender is one of the meritorious matters that must be considered in the appointment process”. However, Attorney-General George Brandis wound back reforms that made the judicial appointment process more transparent, and would not commit to promoting diversity in the judiciary. There are now five men and two women on the High Court. Justice Kenneth Hayne will retire later this year.
The High Court recently handed down its judgment on a constitutional challenge to Queensland’s anti-bikie legislation. The case upheld part of the laws, but declined to rule on other parts. A control order scheme aimed at members of declared organisations was found not to infringe the separation of powers between the executive and the judiciary, because it still required courts to consider guilt or innocence in the ordinary way. However, the most controversial parts of the Queensland laws—in particular the Vicious Lawless Association Disestablishment Act 2013 (Qld)—were not considered by the Court because the applicant lacked standing to bring the case. The concept of legal standing is designed to keep hypothetical cases out of the system, but it can prevent test cases being run. Dr Binoy Kampmark of the Rule of Law Institute is highly critical of this aspect of the decision: “Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation. … It is hard to see what Kuczborski could have done [to gain standing] short of actually committing an act in violation of the VLAD laws, and being convicted as a result. One can only appeal after the fact. … Such a ruling places any efforts to challenge legislation that overreaches into the spheres of public life under question.”
Former Prime Minister Gough Whitlam died this morning, aged 98. From a Legal Studies perspective, his short term in office provided much to consider. His program included many legal reforms, including lowering the voting age to 18, allowing the Territories to elect two senators each, establishing the Family Court and a no-fault divorce system, funding legal aid and community legal centres, creating the Australian Law Reform Commission, signing a raft of UN treaties, supporting Indigenous land rights, and introducing significant legislation like the Racial Discrimination Act 1975. He proposed two increases in Commonwealth Constitutional power, but both failed at the 1973 referendum. He called a double-dissolution election in 1974, and is the only Prime Minister to subsequently hold a section 57 joint sitting of both Houses of Parliament to pass deadlocked bills. He controversially appointed his Attorney-General, Senator Lionel Murphy, to the High Court—over the objection of Chief Justice Garfield Barwick. In retaliation NSW filled the Senate vacancy with a non-Labor appointment. Later that year, Queensland also replaced a dead Labor senator with a conservative. This process was changed by a referendum in 1977 to prevent it happening again, but at the time it tipped the balance of power in the Senate and allowed the Opposition to block supply bills. Whitlam refused to resign because he believed he was accountable only to the House of Representatives, but his government could not function without supply. The Chief Justice of the High Court provided legal advice to the Governor-General, arguably in breach of the separation of powers, and instead of dissolving parliament, the Governor-General sacked Whitlam and swore in Malcolm Fraser as the new prime minister. The supply bills were passed by the Senate before Labor senators had been told about the change of government. The House of Representatives immediately voted confidence in Whitlam, but it was too late. Fraser comfortably won the subsequent double-dissolution election. This series of events is known as a Constitutional Crisis because it highlighted that unwritten (and therefore breakable) conventions are very important to the functioning of Australia’s written Constitution.
As of 7 October 2014, an amendment to the County Court Civil Procedure Rules 2008 has increased the amount lawyers can charge for preparing and running cases. The County Court will no longer maintain its own scale of costs; instead, it will set rates at 80% of the Supreme Court scale. As barrister Paul Duggan explains, “Under the former County Court scale, a solicitor’s time was allowable at $277 per hour for attending a conference… That same solicitor’s time under the new County Court costs regime is now worth $296 per hour (ie 80 per cent of the Supreme Court rate of $370 per hour).” Another significant changes mean that costs will be determined on a new “standard basis” rather than the traditional “party-party” basis. This reflects a change made in the Supreme Court last year, and essentially means costs will be awarded not just for work that is “necessary”, but will also include work that is “reasonable”. Winners will recover more of their costs, which may be fairer—but the risk of paying more if you lose your case can nevertheless be a barrier for less wealthy plaintiffs.
The impact of VCAT fees on access to justice has been questioned, with statistics revealing a significant drop in the number of applications following fee increases. Last financial year, fees for consumer cases increased from $39 to $132, and the number of applications fell by 15%. Gerard Brody of the Consumer Law Action Centre said, “VCAT was created as an alternative to the mainstream court system [and] we are concerned that it remain a low-cost accessible tribunal, rather than becoming more court-like. If the claim is less than a couple of thousand dollars then you might think the fee, together with the time involved with having to go to VCAT, is not worth the effort.” The fee to lodge a planning dispute was increased from “$322 with no daily charges” to “$805, with daily fees of up to $1462″—and in the following year, the number of applications fell by 35%. VCAT said this was partly explained by changes to planning laws making it easier to amend planning permits without going to VCAT, but barrister Michelle Quigley QC warned, “it’s not just a one-off fee now—it’s a daily fee. Ordinary people just can’t afford it. It’s contrary to access to justice.”
ABC Radio National’s Law Report this week focussed on the representativeness of juries. The first segment looked at the tactic of “black striking”, in which American lawyers try to remove African American jurors: “African Americans are three times more likely to be cut than white Americans”. Next, it turned to Alice Springs, and an NT Law Reform Committee report which acknowledged under-representation of Aboriginal people on juries was “clearly an affront to the principle ‘equality before the law’, a principle accepted as basic to this nation; the more so when translated into equally basic Australian such as ‘mateship’ and ‘fair go’.” It concluded, “There is no magic wand to be waved, no miraculous incantation to be pronounced… One must descend into the harsh world of reality and practicality; and that points inevitably to the obvious and comprehensive but long-term solution; education.” In the final segment, the chair of the VLRC explains its recent recommendation that peremptory challenges should be scaled back to prevent gender discrimination.
As part of its new website, the Supreme Court of Victoria has launched launched a weblog. The first substantive post is from Justice Jack Forrest of the Trial Division, who predicts a number of changes in court procedure in coming years. Of note is the emphasis on digital documents: “an online filing system called ‘RedCrest’ … is being rolled out in the Commercial Court. … Hopefully, it will reduce the size not only of solicitors’ paper files, but also of briefs provided to counsel. Furthermore, it will make life much easier for court staff, counsel and solicitors alike by allowing them to search electronic databases quickly and effectively”. In addition, Justice Forrest remarks: “Any case involving five or more folders of court documents will be required to be run as an e-trial—at least for those cases before me.” Other predicted changes will focus on narrowing the issues in dispute as soon as possible: “The days of trials proceeding by attrition are gone. Practitioners should expect the courts to take a grim view of unnecessarily adversarial conduct.”