1×02: Idle Persons and Incorrigible Rogues

In this episode of Hearsay, I’ll dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”

High Court battles prolix lawyers with new typographic rules

For many years, the High Court has had rules about formatting documents in Rule 1.08.01, including requirements that documents are printed single-sided A4 paper, with 2.5cm margins. The High Court Registry is notoriously strict in applying these rules.

Commencing on 1 July 2016, the High Court introduced new rules for special leave applications — including a tight limit on the length of the documents filed. Under the new Rule 41.01.3, “An application: (a) must not exceed 12 pages; and (b) must be typed in at least 12 point (Times New Roman or equivalent font size) with line spacing of 1.5 lines.”

Matthew Butterick is the author of Typography for Lawyers, a book explaining the principles of presenting attractive and legible text in legal contexts. He explains why these court rules exist: “Con­sis­tency of typog­ra­phy in court fil­ings helps ensure fair­ness to the par­ties. For instance, in juris­dic­tions that use page lim­its, if law­yer A sets his briefs at 12 point and law­yer B sets hers at 10 point, then law­yer B will get more words per page. Court rules about typog­ra­phy pre­vent abuse of these lim­its.”

However, he notes that “courts often require text to be set at 12 point—and some­times larger”, but that this does not guarantee uniformity because “the point-size sys­tem is not absolute—dif­fer­ent fonts set at the same point size won’t nec­es­sar­ily appear the same on the page”.

Perhaps Australian lawyers have been reading Broderick’s work. Richard Ackland reports that “some briefs have discovered a font that looks like 12 point, but in reality is closer to 10, which allows more words and argumentation to be crammed into the 12 pages at the required line spacing of 1.5.  This is why innovative thinkers at the bar are paid big bucks.”

This tension between lawyers and judges over the length of documents has a long history. In 1596, the UK Court of Chancery complained about a solicitor who filed documents “amount[ing] to six score sheets of paper [ie, 120 pages], and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper”. As a punishment, they ordered that a hole be cut in the bundle of papers so that it could be worn around the lawyer’s neck while he was paraded “bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and [shown] at the bar of every of the three Courts within the Hall” — in addition to paying a fine and the defendant’s costs.

We are yet to see how the High Court will respond to counsel who adopt creative interpretations of Rule 41.01.3.

New VCAT fee structure adds Corporate and Concession rates

The Victorian Civil and Administrative Tribunal (VCAT) was established as a low-cost alternative to the courts for resolving civil disputes, but in recent years its fee increases have been criticised for undermining that mission. In 2013, fees for consumer cases increased from $39 to $132 and the number of applications fell by 15 per cent. Gerard Brody of the Consumer Law Action Centre said, “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 Andrews Government conducted a review of the tribunal’s fee structure to ensure its resources were allocated as effectively as possible, taking into account the applicant’s capacity to pay. The result is a new system providing for Concession, Standard and Corporate fee rates, which commenced on 1 July 2016.

At the higher end of the scale, a new Corporate fee rate has been established, which applies to government agencies and companies with a turnover in excess of $200,000 per year. The Victorian Government highlighted that “the corporate fee to challenge the refusal of a planning permit for a development with a value of between $15 million and $50 million will increase from $2,086 to $2,328, while the concession fee to challenge the grant of such a permit will now be $150.”

The Standard rate (for individuals and small businesses) is fixed at 70 per cent of the Corporate rate. For most residential tenancy matters, the Standard fee is $61.50, and there is no fee for bond disputes. The new fee structure also includes a sliding scale based on the value of the claim; for goods and services, the Standard fee ranges from $61.50 for a claim under $3000, to $1571 for a claim over $5 million.

In order to address access to justice for those least able to pay, a new Concession rate of fees has been established. Holders of a federal Health Care Card will be eligible for this category, with no application fee for residential tenancy disputes, or for goods and services claims worth up to $15,000. They will also benefit from a cap of $150 on any fee they are required to pay. The option of applying for a fee waiver in exceptional circumstances will remain.

The review process included public consultation, and the Government appears to have taken into account some of the specific suggestions made by lobby groups on behalf of low-income claimants. For example, both the Victorian Council of Social Services and the Consumer Action Law Centre argued that $10,000 was too low a threshold for small claims — the new fee structure removes application and daily hearing fees for Concession holders for claims up to $15,000. However, their proposals that there should be no fee for claims up to $100,000 (VCOSS) or for any claim regardless of value (CALC) were not accepted.

Corrections Victoria fails to bring prisoners to court

Victorian courts have sharply criticised Corrections Victoria for its failure to bring prisoners to court for hearings, but the agency continues to breach the rights of those in its custody.

The Herald Sun reported that Corrections Victoria has been fined 650 times since 2013 — with the total penalties approaching $500,000 — for holding people in custody rather than bringing them to their scheduled court appearances, including over $110,000 in fines in the first half of 2016.

Victoria Legal Aid said that 455 Magistrates’ Court matters were affected in the first seven weeks of 2016, with some prisoners being unable to apply for bail or missing assessments for community-based sentences.

In March, a magistrate told The Age in some cases it was more likely an accused person would attend court if they were released than if they remained in custody. “I’m releasing people — not high-risk — but I’m releasing them on bail because I can’t guarantee they’ll appear.”

The problem had not been resolved by August. After being told that a number of prisoners could not apply for bail as they had not been brought to court, Magistrate Timothy Walsh warned Corrections officers, “They can be brought in or they’ll be released on bail.”

The Victorian Government has been aware of the problem since 2014, when the Auditor-General reviewed the prisoner transport system and reported: “Increasing prisoner numbers within the justice system means that prisoners are not always transported when and where required.”

The Government has announced $14.7 million in funding to improve video link facilities at 53 courts, which it hopes will reduce congestion in the prisoner transport system. This investment supports the Justice Legislation (Evidence and Other Acts) Amendment Act 2016, which requires that most Magistrates’ Court hearings involving remand prisoners should be conducted by video link.

Section 21 of the Victorian Charter of Human Rights and Responsibilities requires that people must not be subjected to arbitrary detention, and that deprivation of their liberty must only be in accordance with procedures established by law.

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.

VLA launches Independent Mental Health Advocacy

Victoria Legal Aid has launched a new service called Independent Mental Health Advocacy (IMHA). The new body is funded by the Department of Health and Human Services, and will provide assistance to people in negotiating the mental health system.

The Mental Health Act 2014 (Vic) was passed last year, and introduced a human rights-based approach to mental health services in Victoria. One major reform was the establishment of the Mental Health Tribunal, which oversees the assessment of people’s mental health and make compulsory treatment orders where necessary. Its decisions are reviewable by VCAT’s Human Rights List.

The new IMHA service will help people who are are subject to a compulsory order, who might be subject to one in future, or who have recently been discharged. It does not provide medical or legal advice, but helps people understand their rights and assists them in communicating their views to medical practitioners and agencies.

Where specialist legal advice or representation is required, IMHA will refer people to appropriate services, including Victoria Legal Aid.

 

Online form simplifies family violence intervention order process

On ABC’s Law Report this week, staff at the Neighbourhood Justice Centre discuss its new online application process for family violence intervention orders.

The standard application form for an intervention order in the Magistrates’ Court is 12 pages long and requires some legal knowledge to complete correctly. The NJC’s Louise Bassett said, “I’ve got to point out, I’ve got a law degree and I’m in the system, and when I first encountered this I didn’t know what to tick on the front page.”

The new form is interactive, so it reduces confusion by only including questions that are relevant to the applicant. It guides the user through the process, and uses plain English and examples to explain the information that is requested. It also provides security advice and contact information for relevant community organisations.

Magistrate David Fanning says the information generated by the form is more useful in court: “Well, the information that it generates for me when I’m looking at the matter is that it highlights risks and high risk. So therefore, a busy court, as all courts are, having that there straight in front of me makes it readily available. … [I]t’s both a better [time] economy and it also brings to the forefront immediately the level of risk.”

The new form is currently available for residents of the City of Yarra for a six month trial period, after which it is expected to be expanded to other areas.

Reforming Chief Judge Rozenes resigns

Chief Judge Michael Rozenes has resigned from the County Court due to illness, after 13 years of service. Attorney-General Martin Pakula said, “Michael brought a warmth and generosity to the office of Chief Judge and will be sorely missed by all who worked with him. His considerable intellect and willingness to constantly improve and innovate have made the County Court a modern, progressive and more responsive institution.”

Rozenes oversaw the introduction of a number of specialist divisions and lists in the County Court, aimed at making the court more accessible to people. For example, he oversaw the adoption of the Koori Court in Melbourne after a successful pilot program in Latrobe Valley. He also created the Sexual Offences List to ensure “special attention” was given to the needs of victims and accused persons in such cases.

Other initiatives included the provision training and counselling for judges to deal with stress and trauma, and the introduction of electronic filing in civil cases in 2003 and criminal cases in 2015.

Labor to increase VCAT fees again, despite access concerns

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.”

Bias concerns force Qld Chief Justice to withdraw

Turmoil in the Supreme Court of Queensland continued yesterday, with Chief Justice Tim Carmody dramatically withdrawing from a case, and the President of the Court of Appeal Margaret McMurdo declaring she “cannot sit with him again on any court.” The Chief Justice’s appointment was controversial from the outset, with senior lawyers and judges expressing concern that he is politically biased and underqualified for the the role. Those concerns have not subsided.

Retiring Justice Alan Wilson gave a speech accusing Carmody CJ of calling other judges “snakes” and “scum”. The speech also condemned his work ethic: “The Chief Justice has not sat in an actual hearing since the 15th of February this year. He has withdrawn himself from all published court calendars so nobody knows when or whether he intends sitting again.” In response, Carmody CJ sought to prove he had a busy schedule by publishing his calendar of engagements.

This revealed he held a private meeting with child protection campaigner Hetty Johnston in April. At the time, he was one of three judges considering an appeal by Brett Cowan over his sentence for the rape and murder of 13-year-old Daniel Morcombe. In the wake of Cowan’s conviction, Johnston spoke to the media arguing that he “should not be released”: “These offenders are released from our courts on a daily basis and it must stop.” Her organisation, Bravehearts, formed a partnership with the Daniel Morcombe Foundation.

When McMurdo P discovered the meeting, she became concerned about the possible perception of bias, and asked the Chief Justice to disclose the meeting to the parties. An exchange of letters between the court and the lawyers followed, and ultimately Cowan’s legal team argued that due to the perception of possible bias, Carmody CJ should withdraw from the appeal bench. He told them they would need to be “armed to the teeth” to remove him, so they argued he should not make that decision himself as he appeared to have prejudged the matter.

At that point, Carmody CJ called a mention hearing and announced that while the application was “unmeritorious … it is in the best interests of this Court and overall public confidence in the administration of justice that I withdraw instead of prolonging this bizarre sideshow”.

He also released further correspondence that showed the depth of disagreement within the Court. McMurdo P said she was “deeply concerned” about the meeting with Johnston; Carmody CJ said his colleague’s investigation of the matter was an “exceptional interference with the ordinary judicial process”. Ultimately McMurdo P wrote to the Court registry: “I regret to inform you that following an extraordinary memorandum yesterday from the Chief Justice in relation to R v Cowan, I cannot sit with him again on any court. Please ensure in future that I am not listed to sit with the Chief Justice.”

The Court now needs to decide whether the remaining two appeal judges can deliver their decision, or if the appeal needs to be heard fresh by a new bench. The family of Daniel Morcombe are understandably upset by the delay and uncertainty; however, given the concerns about perceptions of bias were shared by lawyers and the President of the Court of Appeal, it is important that they be carefully addressed: “Not only must Justice be done; it must also be seen to be done.”