TURC criticism prompts new Supreme Court list

The Supreme Court of Victoria has established a specialist Employment and Industrial List, which commenced on 1 January 2016. The list will manage proceedings involving employment contracts, breaches of confidence, and employment-related misleading and deceptive conduct.

It will also deal with allegations of “interference with contractual relations, industrial torts, secondary boycotts, and related contempt proceedings”. These are claims typically directed against industrial action taken by workers and their trade unions.

The establishment of the list comes after criticism by former High Court judge Dyson Heydon in the interim report of his Royal Commission into Trade Union Governance and Corruption, known as TURC. (This controversial inquisitorial body was criticised for political bias after Heydon agreed to speak at a Liberal Party fundraiser, but he cleared himself of wrongdoing and continued its hearings.)

Heydon claimed “extraordinary delay” in the Supreme Court’s hearing of industrial torts and related matters “will make the Australian legal system a laughing stock” and called for “consideration to be given to procedures which ensure swift determination of contempt applications”.

These comments were made in relation to a case study of a long-running and high-profile dispute between construction company Grocon and the Construction, Forestry, Mining and Energy Union (CFMEU) over the appointment of safety representatives. This dispute culminated in a massive protest outside the Myer Emporium construction site, and led to Grocon suing the CFMEU over industrial torts, secondary boycotts, and related contempts.

Grocon was represented in the Supreme Court by Michael McDonald SC. He was subsequently appointed to the Supreme Court Trial Division, and is the inaugural Judge in Charge of the Industrial and Employment List.

Tasmania to restore defamation “forum shopping”

Under the division of powers, defamation is a matter for the States, and historically, the law was different in each jurisdiction. With the rise of national (and international) media and communications, this led to “forum shopping” in which plaintiffs could choose to sue in the State with the most plaintiff-friendly law. In order to achieve nationally consistent laws, the States agreed to implement uniform legislation, with an identical Defamation Act 2005 passed in each State. Now, Tasmania is threatening to abandon the national scheme by allowing big corporations to sue individuals. Critics say this will make Hobart the “defamation capital of Australia” by again allowing forum-shopping. The proposed change is part of a broader suite of Tasmanian reforms designed to crack down on anti-forestry protesters, but which may have much broader impacts.

Book to be pulped after mistaken identity defamation

A book on a corruption scandal in New South Wales has been withdrawn from bookshelves, and is likely to be pulped—because it accused the wrong “Chris Brown” of corruption. The Chris Brown who was mistakenly identified is suing for defamation. Crikey reported that one Melbourne bookshop had removed the book from shelves, but when their journalist enquired about it, “the extremely helpful staff thought the store must be in the process of re-stocking and fetched the book out of a box behind the counter and handed it straight to [me].” Under the Defamation Act 2005 (Vic), bookshops are protected by the defence of innocent dissemination if they inadvertently distribute defamatory material; however, that only applies if they “neither knew, nor ought reasonably to have known, that the matter was defamatory”. Continuing to sell the book after it has been recalled could expose the bookshop to liability.

Abbott abandons 18C change; racial insult ban stays

It will remain illegal to “offend, insult, humiliate or intimidate” people on the basis of their “race, colour, or national or ethnic origin”, after the federal government abandoned its election promise to amend section 18C of the Racial Discrimination Act 1975 (Cth). Prime Minister Tony Abbott made a “leadership call” and overruled Attorney-General George Brandis, who had been pushing for the amendment. The decision was made after a strong public backlash. It was revealed last week that more than 75% of submissions in the consultation process were opposed to the plan. However, not everyone is pleased by the backdown. The Prime Minister phoned Andrew Bolt to tell him of the decision before it was announced publicly, and Bolt is not pleased. He has previously breached section 18C in writing about light-skinned Aboriginal people, and now complains that he will be unable to speak his mind about “Muslims” and “people from the Middle East”.

Victoria’s biggest civil trial settles for $500m

The Supreme Court has announced that “[a]fter more than 200 court sitting days, testimony from 100 expert and lay witnesses and in excess of 10,000 case documents admitted to evidence, Victoria’s biggest civil trial—the Kilmore East-Kinglake Black Saturday bushfire class action—has reached a settlement.” The settlement of $500 million will need to be approved by the court to ensure a fair process for dividing up the funds between more than 10,000 members of the class action group. The plaintiffs argued that the negligence of power companies and the State government exacerbated the impact of the bushfire. Despite the settlement, the defendants deny responsibility.

Treasurer to test “politics” defence to defamation

Commonwealth Treasurer Joe Hockey is suing the Fairfax media company for defamation over articles published in its newspapers under the headline, “Treasurer for sale: Joe Hockey offers privileged access”. The articles described expensive fundraising dinners that allowed people to secretly contribute up to $22,000 to the Liberal Party, bypassing donation disclosure laws. Hockey claims the articles suggested he was corrupt, and that he has been “greatly injured, shunned and avoided” as a result. If the matter goes to trial (which is by no means certain), it will require the court to apply the precedent set by Lange v ABC: publication of defamatory matter is protected if it relates to political issues, is reasonable, and is not motivated by malice.

UN demands Vic Gov take responsibility for rogue police

The United Nations Human Rights Committee says Victorian law should hold the government responsible for all actions by on-duty police officers, and the victim of a savage beating should receive compensation. In 1996, police broke in to Corinna Horvath’s home, bashed her, fabricated evidence, and later lied in court. She initially won compensation, but that was overturned when the Court of Appeal ruled the government was not vicariously liable under section 123 of the Police Regulation Act 1958 (Vic) because the indidual police involved had not acted “in good faith in the course of his or her duty”. The UN ruled this was a breach of the International Covenant on Civil and Political Rights: “It is the State’s responsibility to ensure that its police do not violate human rights and to remedy violations of human rights by its police”. It concluded that “the State of Victoria is obliged to change its domestic laws” to address the problem. The Victoria Police Act 2014, which commences in December, changes the State’s liability for torts committed by police, but Horvath’s lawyers say the new law will be “an expensive and lengthy two-step process” and does not go far enough.

Should negligent police compensate crime victims?

“If a woman is assaulted or killed and police don’t do all they can to protect her from attack, should the police be held liable in negligence?” In Australia, the law is unclear. The NT police reached a confidential out-of-court settlement with Tiffany Paterson, whose complaints were ignored by police before she was beaten and slashed in the face by her former partner. In WA, the family of Andrea Pickett are suing the police for their failure to prevent her being brutally murdered in front of her daughter. Australian lawyers are attempting to develop this area of the common law because in the UK, the High Court awarded damages to two victims of a serial rapist. It held that “a series of systemic failings” breached “a duty imposed upon the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner”. However, the UK claim was brought under the Human Rights Act 1998 (UK), and no equivalent legislation exists in Australia.

Ethnic leaders oppose weaker anti-racism law

The only Indigenous MP in the federal government’s caucus has threatened to cross the floor if Attorney-General George Brandis’s plan to water down anti-racism laws goes too far. He joins representatives of the Indigenous, Greek, Jewish, Chinese, Arab, Armenian and Korean communities, who said the proposals were “morally repugnant”. The government’s move is in response to a Federal Court finding that Andrew Bolt breached section 18C of the Racial Discrimination Act 1975 (Cth). In a series of articles, Bolt questioned whether “fair-skinned Aboriginal people … are sufficiently of Aboriginal race, colour or ethnicity to be identifying as Aboriginal”, and this “offend[ed], insult[ed], intidimidate[d] or humiliate[d]” Aboriginal people. He could not rely on the “free speech” defence in section 18D because his reports were “erroneous”, “mocking and derisive”, and were therefore not published “reasonably and in good faith”. Press reports suggest the government is proposing to amend both sections 18C and 18D. The Australian Human Rights Commission has published an explanation of how the laws currently work, with case examples.

Abortion clinic sues to remove anti-choice protesters

Melbourne’s Fertility Control Clinic is suing the city council for failing to remove protesters from outside its premises. Maurice Blackburn solicitor Lizzie O’Shea explained she would be “asking the court to make an order in mandamus, or perform a duty imposed by law”. Specifically, “[u]nder section 60 [of the Public Health and Wellbeing Act 2008], a council has a duty to remedy as far as is reasonably possible all nuisances existing in its municipal district. The definition of nuisance includes activities that are dangerous to health.” The applicants will argue that the health of patients and staff is harmed by harrassment by the anti-choice protesters, who have been picketing the site for a decade.