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US non-profit organisation sued for re-publishing the law

Public.Resource.Org is a nonprofit organisation that is attempting to digitise and publish copies of all public domain government records in the United States. Its owner, Carl Malamud, believes “the law belongs to the people and in our system of democracy we have the right to read, know, and speak the laws by which we choose to govern ourselves.”

The State of Georgia is suing Malamud for publishing a copy of the Official Code of Georgia Annotated (OCGA), claiming it is a breach of the government’s copyright. Its statement of claim accuses Malamud of a “strategy of terrorism” by publishing copies of the law. Georgia does not publish a copy of the law itself, and instead refers its citizens to for-profit law publisher LexisNexis.

On the government side of the argument, the formatting and annotations of the OCGA may be subject to copyright. However, Malamud argues that because Georgia has designated the annotated version of the law as the official version, they must be in the public domain.

Many of the annotations in the OCGA (such as the history of amendments to a section) are a standard feature of the official versions of Australian laws. The Commonwealth and Victorian governments provide free PDF copies of all laws and regulations, and also allow groups such as AustLII and Jade to republish the documents. Jade adds additional annotations and owns the copyright to those.

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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.

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Judge threatens age-old punishment for wordy lawyers

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…

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Amended data retention law to pass with Opposition support

Late last year, the Commonwealth Government announced its plan to require telephone and internet service providers to retain certain data about their customers for two years. The Attorney-General appeared unable to explain what the law would cover, and protests and e-petitions were organised to oppose the plan. As a result, the Telecommunications (Intercepts and Access) Amendment (Data Retention) Bill 2014 was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for an inquiry. The committee received 204 submissions and conducted public hearings into the bill. The PJCIS includes both MHRs and Senators, from both Government and Opposition. While committees like this sometimes split along party lines and produce separate reports, in this case the PJCIS produced a unanimous report that recommended significant changes to the bill. Key changes include ensuring the scope of the data to be retained is defined in the legislation (and not delegated to the Attorney-General), and preventing the data being accessed in civil cases (such as copyright holders suing downloaders) without approval from the government. If the recommendations are adopted, the Government and the Opposition will be able to pass the legislation through the Senate despite the ongoing concerns of crossbenchers about breaches of privacy, the impact on journalists, and the lack of a warrant requirement to access the data.

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Chief Justice calls for inquisitorial approach

In a speech given to the Victorian Bar & Law Institute Joint Conference, Chief Justice Marilyn Warren has called for lessons to be learned from the inquisitorial legal systems of Europe: “It is an adversarial setting that we live and breathe every day. What we need to do is to find ways to dilute, vary and soften the impact of the adversarial setting. We might learn from the European experience where judges very much control the litigation. … If we learn from the European experience trials would be shorter and costs may be a fraction what they are now.” Her Honour argued that creativity and cooperation between the courts and the parties could yield significant benefits. Citing a dispute involving 1600 closely connected cases, she noted that the judge worked with the parties to develop a template for identifying issues. As a result, “his Honour was able to conduct a directions hearing for about 150 separate pieces of litigation in a single morning by 11:30am. Justice Judd was able to achieve this because of the approach he took… but also, importantly, because of the cooperation of the parties.”

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Legal costs in County Court civil trials increased

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.

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Blogging Justice predicts Supreme Court digital shift

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.”

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VLRC calls for reform to end gender bias on juries

The Victorian Law Reform Commission’s Jury Empanelment report was tabled in parliament on Wednesday. It made a number of recommendations, such as calling jurors by number only (not by name), ending the practice of jurors “parading” past the accused, and allowing up to 15 jurors to deliberate instead of additional jurors being “balloted off” at the end of the trial. The most significant recommendation was to reduce the number of peremptory challenges. The VLRC said that on current statistics, “For every man challenged, two women are challenged”, and as a result “women make up on average only 44 per cent of jurors on criminal trials”. Reducing the number of peremptory challenges would limit their impact on the gender representativeness of juries. The Government will now consider the recommendations before deciding whether to implement them.

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Magistrates’ Court expands mediation programme

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.

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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.