Clayton Utz’s Sally Shepherd has a good article about a recent decision of the Supreme Court of Victoria’s Justice Bell on judges’ duties to assist unrepresented litigants, and whether change is to be wrought on that front by the Charter of Human Rights and Responsibilities which will really start kicking next year. It is the right to a fair trial contained in the Charter which is relevant. The decision is Tomasevic v Travaglini  VSC 337, and will no doubt be read carefully by VCAT members who are frequently faced with unrepresented litigants. The analysis of the decision is by reference to the disadvantage of the unrepresented party as against the represented party. I wonder what the duties would be where two unrepresented parties are jousting with one another. It was one of those rare victories for the unrepresented; Mr Tomasevic, an educated and intelligent layman, had the County Court’s decision overturned, in part because of a want of proper assistance by the County Court judge. Ms Shepherd’s summary of Justice Bell’s articulation of a trial judge’s duties to Mr Tomasevic is as follows: Continue reading “Charter of Human Rights and the Victorian unrepresented litigant”
It took an awfully long time — almost 15,000 words — for Justice Hansen to state the bleeding obvious in Attorney-General for the State of Victoria v Shaw  VSC 1148, but in the circumstances, I well understand why his Honour desired to appeal-proof his judgment. Mr Shaw, who as a newly annointed vexatious litigant, must obtain leave of the Supreme Court before commencing proceedings, may be Victoria’s most unsuccessful litigant. He unsuccessfully sued (in many cases as private prosecutor of serious criminal offences) the Chief Magistrate, Masters Wheeler, Evans, Kings and Cain and Justice Smith of the Supreme Court, the Court of Appeal’s President Winneke, Justices of Appeal Brooking, Charles, Buchanan, and Chernov, the High Court’s Justices Kirby, Callinan, Crennan, Gummow, Heydon, Gleeson, and Hayne, the Commonwealth Governor-General, the Victorian and Commonwealth Directors of Public Prosecutions, the Grand Master of the United Grand Lodge of Victoria, Rob Hulls and the Attorney-Generals of Tasmania and NSW, and Julia Gillard. He sued Kim Beazley and John Howard for treason and misprision of treason. He had been declared vexatious already in Western Australia, and took to suing a similar cast of Western Australians in Victorian courts — for an enumeration of these actions, see the judgment…
Of course there were the predictable forms of hopeful litigation, such as the defence of speeding charges on the bases that ‘the Magistrate’s [sic.] Court at Werribee was never legally Constituted, because Victoria does not have a valid s. 354 of the Crimes Act, 1958 to rule on Mr Shaw’s arguments that: Continue reading “Private prosecution of PM for treason leads to vexatious litigant status”,’ and ‘The Queen of England has abdicated her role as DEFENDER OF THE FAITH, that faith being Christian, by abdicating to the foreign power of Freemasonry’. But one must admire the chutzpah in the attempt to convoke a grand jury under
President Maxwell spoke at Jason Pizer’s book launch the other night. There is no nonsense about him, and no hubris. I liked the way he sorted out Mr He’s case, one which was sufficiently memorable for him to make reference to it in passing in his speech. The President is at pains to cast the Court as a practical and fast court, correcting injustices but not interfering with first instance decision makers for a want of i dotting and t crossing. He does not aspire to a Court writing finely appeal-proofed legal treatises for the delectation of other courts of appeal. Indeed, he is advocating ex tempore judgment giving wherever possible. The President’s speech on the New Court may be found here, the latest practice note on civil appeals here.
The President sees written advocacy as very much on the rise in the Court of Appeal, a way of getting through more hearings more quickly and reducing what he properly regards as the inexcusable delays which have sometimes characterised the Court of Appeal in the past. President Maxwell actually said that justice delayed is justice denied, an admission rarely heard in the formal, public part of our grindingly slow superior court system, but one which practitioners and their clients feel keenly, all the time.
I kind of knew all this, but I was only vaguely aware of the passion with which the President is trying to clean up the archaic and uncertain bits of the law of procedure. Continue reading “President Maxwell: legal reformer”
A lawyer failed to show up for court one day. Then he appeared to explain: injured his ankle that morning. The judge said ‘Take him away’ and he went to jail, just like that. Now, for some reason, the judge is under investigation. They do everything bigger and better over there. Her Worship Pat O’Shane’s conduct, scolded by the NSW Court of Appeal, in citing a party for contempt and continuing to hear the trial of his matter, is but a pale imitation of the strong leadership shown by the Texans.
Here it is. You can read the transcript or listen. Some tidbits:
- ‘You only have to look around the rest of Australia at present and you can see that there are systemic problems in every police force and they seem to recur with unfortunate frequency.’
- He prosecuted Lionel Murphy and cross-examined Michael Kirby in that case.
- He acted for Allan Bond.
- He sought Christopher Skase’s extradition.
- He has two books and a couple of plays ready for publication.
Justice Gillard is my favourite judgment writer. What a shame the legal system is about to lose him to retirement. When the moment is ripe, he gives the cattle who wander without insight onto the slaughterhouse floor the most splendid judicial whallopings. Justice Gillard is a senior judge, and there is a serious point to be made by this post which is otherwise well-suited to public holiday reading. There is an extraordinary terror in the law of calling anyone a fraud (which means nothing more in the law than ‘dishonest’), and of finding anyone to have deliberately lied. Doubtless this is preferable to a world in which lives might be ruined by the dishing up of gossip as fact, but scandalous lies are routinely tolerated, even expected, and virtually no one is ever prosecuted for perjury, rendering the oath meaningless. It is a splendid thing when a lawyer has sufficient command of the legal process to call it as he sees it when the need arises, and Justice Gillard is one of those lawyers.
Remember the whalloping his Honour gave the Law Institute in a professional discipline prosecution, where he said that its decisions were so manifestly unreasonable as to comfortably satisfy the Wednesbury unreasonableness test, to wit that no reasonable decision maker could ever have made them? It was nothing compared with the defamation case of Li v Herald & Weekly Times  VSC 109 about the Hun‘s “Medibonk” expose of the Collins St Chinese herbalist who provided massages with happy endings and then wrote out receipts with service codes for less exciting services which private health insurers would pay for. That’s ‘happy endings’, by the way, in the sense of ‘Ms Li removed the bath mat sized towel, put a pair of latex gloves on her hands and applied creams and oils to his testicles and penis. His penis became erect and Ms Li masturbated him to ejaculation.’ Continue reading “Was this the most unsuccessful Australian defamation action ever?”
In my post “Judge uses big word”, I commented on President Mason’s use of “tergiversation”. Now David Starkoff at Inchoate has noted another’s analysis of the odds of each of the High Court judges other than Justice Kirby being responsible for the appearance of “epexegetical” (which seems to mean “explanatory in a way supplementary to the principal or original explanation”) in a decision on migration. (10/1 odds: Justice Gummow.) Love how the judiciary tends to save up these little diamonds of language for those least likely to have the resources to look them up.
And, by way of update to my post “Finally, some scholarship on Australian lawyers’ conflict of duties”, here is a long article on conflicts of duties in America, “I’m All Verklempt!” by Kendall M. Gray et. al., including a long analysis of the Yanks’ position on Chinese walls. The relationship between establishing a conflict of duties and the entitlement to compensation of one of the people to whom the conflicting duties is owed is a bit complicated in Australia. It certainly does not follow that every breach of fiduciary duty gives rise to a right to money in the victim from the lawyer. But in Texas, there is a principle of fee forfeiture which applies in cases of clear and serious breaches of fiduciary duty, a remedy born in Burrow v. Arce 997 S.W.2d 229 (Tex. 1999). Where an attorney was found to have grossly overcharged, fee forfeiture was imposed so that the attorney lost all his fees rather than just those which exceeded a reasonable fee: In re Allied Physicians Group, P.A., No. 397-31267-BJH-11, Civ. A.3:04-CV-0765-G, 2004 WL 2965001, at *5 (N.D. Tex. Dec. 15, 2004) (unpublished), aff’d, 166 F. App’x 745 (5th Cir. 2006).
Mr Gray’s style cannot be described as stuffy, and exemplifies what is good about Texas, namely plain talking: Continue reading “Updates: big words, Texan legal writing, conflicts of duties”
The only black judge of the United States Supreme Court, Justice Clarence Thomas is said by Wikipedia to be second most likely to vote in favour of free speech in cases before the Court. Yet his advocacy of free speech does not extend to enthusiasm for personal exercise of the right; he has not asked a question of counsel in court for 15 months.
Some commentators suggest he is not an enthusiast of oral argument. Orality is a much bigger feature of Australian and English courtrooms than American, but it is on the way out, slowly. Several were the times in the Bar Readers’ Course I will complete on Thursday that we were told that a written submission is appropriate to every hearing in every court, a proposition which if taken literally stretches my credibility at least, but is probably not as far from the mark as many people might think.
In MK v John Fairfax Publications Pty Ltd  NSWSC 758, the Sydney Morning Herald was ordered to pay $100,000 in damages for defamation to a barrister about whom it published a sneering error-riddled excoriation. Just shows that you should not kick a barrister when he’s down. [Update: in April, the NSW Court of Appeal overturned the decision and ordered a new trial on the basis that the trial judge exhibited ostensible bias against the newspaper, and should have recused himself on the defendant’s application: John Fairfax Publications Pty Ltd v Maurice Kriss  NSWCA 79.] The article included the passage: Continue reading “Bankrupt once-struck-off barro described as “shoddy” wins $101,008″