In 2007, the Magistrates’ Court introduced a pilot programme to refer defended civil cases up to $40,000 for mediation, at no cost to the parties. It began at Broadmeadows, and has since been expanded to a number of other courts. Under a new practice direction, that programme will be extended to Heidelberg from 1 August 2014. The mediatior will be provided by the Dispute Settlement Centre of Victoria. Section 108 of the Magistrates’ Court Act 1989 (Vic) gives the court the power to refer civil cases for confidential mediation in the hope that they will reach an agreed settlement or at least narrow the issues in dispute.
The Queensland Bar Association is calling for a new process for appointing judges, after a scandal erupted over the appointment of Tim Carmody QC as the next Chief Justice. Senior lawyers and former judges have criticised Carmody as politically biased and unqualified—in 2006, as a Family Court judge, he was caught cutting and pasting sections of a judgment—and the president of the Bar Association quit in protest over Attorney-General’s consultation process. Carmody told the media, “It’s regrettable that not one of the Supreme Court judges has congratulated me yet.” The Bar Association is calling for a “different and more structured way of identifying and selecting possible appointees to judicial office to ensure all appointments are made impartially and on the basis of suitability for the particular office”. In Victoria, controversial MP Geoff Shaw denied the Premier’s accusation that he tried to influence judicial appointments. An election promise to establish an Independent Judicial Appointments Advisory Panel has not yet been implemented by the Government. Update: It has now been revealed that “no-one—other than the premier—strongly pushed Justice Carmody’s candidacy”, and he was promoted at the last minute after being publicly criticised by former Solicitor-General Walter Sofronoff QC. A sitting Court of Appeal judge, Justice Muir, gave a speech last night saying “because of the unfortunate way in which this saga has unfolded, the obvious lack of support for the Chief Magistrate’s elevation to the office of Chief Justice of Queensland and [other] matters discussed earlier, the Chief Magistrate will see that the only appropriate course is for him to withdraw.“
ABC Radio National has rebroadcast a 2012 documentary, Wooing the jury, about the life of a criminal barrister: “in this program we go under the barristers’ horse hair wigs to hear about their struggles with ethical dilemmas, lying clients, righting injustices, long work hours and all the after-effects.”
A judge in Florida has been recorded arguing with a defence lawyer before telling him, “If you want to fight, let’s go out back”. The lawyer then leaves the courtroom and an altercation can be heard. According to a colleague quoted by Florida Today, “The lawyer said as soon as he got in the hallway the judge grabbed him by the collar and began punching him in the head.” In Australia, the issue of judicial bullying has been debated by lawyers and judges, who acknowledge that courtroom exchanges are stressful and sometimes necessarily heated, and agree that workplace bullying is unacceptable.
In today’s Lee v The Queen judgment, the High Court unanimously ordered a retrial over drug and firearms charges, in an important decision upholding the privilege against self-incrimination. Two men had been forced to answer questions by the NSW Crime Commission under special powers that suspend the “right to silence”. The men were later charged by the DPP, and the prosecutor obtained a copy of the Crime Commission transcript, breaching a suppression order. The High Court ruled: “It is a … departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.” Barrister Edward Greaves points out that the decision will force all investigative bodies with compulsory examination powers to ensure they keep their records out of the hands of prosecutors. The High Court said if leaks occurred, trials should only go ahead when “another prosecutor and other DPP personnel, not privy to the evidence, were engaged.”
A class action involving fifty plaintiffs will go ahead, after one plaintiff refused to accept a settlement offer. The case is against a drug-addicted anaesthetist and the organisations involved in his employment and registration, after he infected the women with hepatitis C through shared needles. The settlement offer was made “contingent on the woman not trying to go it alone” because the “defendants did not want to pay out all the women in the class action and then have to take part in a trial involving one victim.” Justice Beech said he could not force the woman to accept the settlement, but he ordered that she “be prevented from benefiting from the legal work done on behalf of the other victims” when the trial begins on Monday. The class action process is designed to save costs by allowing one trial to determine the outcome of a group of similar claims.
The Productivity Commission has released its draft report on access to justice in the civil jurisdiction, and will now seek public feedback. The PC provides advice to the Commonwealth on economic issues. The terms of reference for its inquiry focus on the financial and social costs of the justice system, and possible reforms to improve efficiency and accessibility. For example, “The report heavily criticises time-based billing by lawyers, arguing that it leads to over-servicing, rewards inefficiency and lacks certainty for clients.” One of its more unusual proposals is for “a legal expenses loan scheme which would offer income-contingent interest-free loans to people who do not qualify for public legal assistance. The person would repay the loan through contributions of a proportion of their income, or from any award of damages.”
This week’s Radio National Law Report considers the difficulties faced by litigants who are forced to represent themselves in court. QPILCH′s Elizabeth Pendlebury says the system is difficult for non-lawyers to navigate: “They don’t expect to have to follow a lot of pre-trial proceedings and steps to set out their case before having a substantive hearing before somebody in the court system.” This can lead to people dropping their cases, even if they have a strong legal position. Judge Misso of the County Court says he tries to provide a “roadmap” for self-represented litigants, but the assistance judges can offer is limited in an adversarial system. The County Court is trying to improve accessibility with a new self-represented litigants coordinator, and a YouTube video guide to court processes.
The Supreme Court last night forced the Herald Sun to stop its presses, to prevent the possible identification of a criminal defence lawyer who was also a secret police informer. Articles published earlier this week have been removed from the paper’s website. The right to confidential discussions with a lawyer is fundamental to the criminal justice system; Justice Gummow described it as “a substantive and fundamental common law doctrine, a rule of law, the best explanation of which is that it affords a practical guarantee of fundamental rights.” The Legal Services Commissioner says a lawyer who leaks against their clients could be charged with professional misconduct. Prominent lawyer Rob Stary has called for a royal commission to investigate the issue and restore public confidence in the system.
The Chief Justice of the Family Court of Australia, Diana Bryant, says that due to funding cuts to Victoria Legal Aid, “the system is compromised, unquestionably”. Increasingly, parties are required to represent themselves, which puts them in a difficult position: “You have a party who’s not only going to be cross-examined by their former partner about, perhaps, violence of which they’re the victim, but they have to run their case and they have to cross-examine their partner. And for many people that’s impossible and it leads to settlements.”