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 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.”
The Media, Entertainment and Arts Alliance, a trade union representing journalists, has called for universal national “shield laws” to protect journalists’ sources. Billionaire mining heiress Gina Rinehart has twice subpoenaed journalists in a bid to force them to reveal the sources of their information about her in newspaper reports and a biography. In both cases, she failed because Western Australia introduced shield laws in 2012, which require that the “starting point will be that if a journalist has promised not to disclose an informant’s identity, that journalist or their employer cannot be forced to give evidence that would disclose the informant’s identity“. While the model Uniform Evidence Act includes a shield provision, it has not been adopted in every State, and is not as broad as the WA law.
The Napthine Government has proposed a crackdown on “tribunal pests and costly court time-wasters”. Under the existing system, a person can only be declared a “vexatious litigant” by the Supreme Court on the application of the Attorney-General; the bill is a response to a parliamentary committee’s call for a more flexible system. According to the explanatory memorandum, “The Bill enables the Supreme Court, the County Court, the Magistrates’ Court and VCAT to make various types of ‘litigation restraint orders’, which increase in severity in accordance with a person’s litigation history and pattern of vexatious behaviour.” A vexatious litigant is prohibited from launching a legal case without first being granted permission by the court.
Mass murderer Julian Knight has been granted leave to challenge a decision to ban him from access to a computer in his prison cell, which he says he needs to prepare for legal proceedings in the Supreme and High Courts. Knight has been declared a vexatious litigant because he frequently launches futile law suits, which means he now needs the Court’s permission to sue. He is expected to challenge the Corrections Amendment (Parole) Bill 2014 if it is passed, because it names him as the only prisoner who must be denied parole unless his death is imminent. The High Court has previously struck down a NSW law that purported to keep a specific prisoner locked up after his release date. However, the Victorian bill differs in that Knight is serving seven consecutive life sentences, and eligibility for parole is a matter for the executive rather than the judiciary.
The NSW Supreme Court will allow a jury to decide whether the ABC’s “Chaser Boys” defamed political commentator Chris Kenny by displaying a photoshopped image of him having sex with a dog. The comedians claim the segment was satire, and was a legitimate response to Kenny’s frequent criticism of the ABC. Justice Beech-Jones did not accept that anyone would believe that Kenny had actually engaged in the act, but he did accept that “the image was such a massively disproportionate response … that it is capable of conveying that Mr Kenny is, in a general sense, a contemptible and disgusting person.” It will now be for a jury to decide whether that was actually conveyed. The Prime Minister has suggested the ABC should apologise and settle the case, but human rights professor Sarah Joseph believes it is an important test case to determine the legal boundaries of satire.
The Immigration Minister has re-made a regulation capping the number of asylum seekers accepted by Australia, so that no more may be accepted this financial year. He revoked a similar cap late last year “within hours of a High Court challenge being lodged against the cap”. Refugee lawyer David Manne had intended to argue the regulation had “no sound or rational basis in policy or law”, but dropped that claim when the regulation was revoked. However, other aspects of the case continued, and the matter is listed for hearing in the High Court tomorrow.