Special chair for light duties in chambers … Lawyer ordered to pay indemnity costs in sewerage bill standoff … Austlii’s redesign … The senate considers whether courts have the wrong idea about contempt … When legislation is received from Mother England what meaning can parliament intend? … Goings On with Theodora
Queensland lawyers have been eager buyers, snapping up the $59 bargain as a memento to the happy but short-lived days when Timbo Carmody was CJ.
Clearly, the chair’s specifications have Timbo in mind. It is recommended that it only be used for between three and five hours at a time – a long day for the former CJ and the warranty is one year, which just about fits with his pension eligibility.
The only snag is the 80 kilo weight capacity. It has been tested by various sturdy members of the profession and while it creaked and wobbled did not entirely collapse at 100 kilos.
It comes with armrests, handy for lolling about and relaxing and it’s in a durable black plastic, so can be hosed down in the event of accidents.
A customer on the Officeworks website commented that the Carmody is good value for an “occasional chair but understandably not durable enough for eight hours a day”.
“The conduct of the defendant led to a persistent frustration of the orderly court process … The defendant displayed a marked pattern of obfuscation of the issues and preparedness to make and convey hopeless arguments to the claimants and to the court … It is difficult to understand why the defendant conducted himself in this manner … I am satisfied that there has been delinquency on the part of the defendant in his conduct during the proceeding …”
I’m quoting here from Van Diemen’s magistrate Olivia McTaggart in her reasons for awarding indemnity costs in favour of the Tasmanian Water and Sewerage Corporation Pty Ltd.
The defendant was lawyer Jamie Collingwood Kitto, who had owed water rates of around $4000 for a two year period.
He eventually paid the bill just before an application for summary judgment. McTaggert described this as a “surrender and capitulation”, but there was ongoing refusal to pay the endorsed costs of the claim, $468.
Because the water & sewerage people, and their lawyers at Rae & Partners in Launceston, had been put to a lot of bother, they came looking for indemnity costs.
- Failing to abide by the court ordered timetable for hearing;
- Not accepting the water corp’s offer to accept the debt until it had worked on an application for summary judgment;
- Maintaining the unmeritorious argument that a costs order could not be made without a judgment for one party;
- Refusing to accept the second offer to settle by payment of the claim and endorsed costs;
- Applying to the magistrate to disqualify herself;
- Making the unmeritorious submission that the claimant could not be represented by counsel;
- Failing to raise any arguable matter of defence, or assisting in narrowing the issues at a conciliation conference;
- Claiming confusion about the claimant’s application.
Pulling the flusher one more time, Madge McTaggert said that as a lawyer Kitto owed a duty not to waste the court’s time.
In 2009 chief justice Hollywood Pete Underwood dismissed an application by the Tasmanian Law n Order Society to discipline Kitto for allegedly giving a false denial under oath.
According to news reports Kitto withdrew his application that he had been unfairly dismissed from Zeeman Kable & Page.
He denied having downloaded “page after page” of lesbian pornography, including one called “Hot young girls with suntanned skin going at it”.
Magistrate Matterson was critical of Kitto for swearing and throwing documents on the floor in court and for representing himself.
Jacinta Dwyer has resigned from the Victorian magistracy four months after she took up the appointment.
Jacinta is the wife of Charles Power, a partner at Holding Redlich. She was a research associate to the late John Fogarty on the Family Court, and later a family law solicitor at Clayton Utz in Canberra when Charles took up a political advisor’s job in the nation’s capital.
Most of her appearance work was done as a solicitor advocate in Melbourne with a considerable amount for the Women’s Legal Service.
We are so proud that WLSV lawyer Jacinta Dwyer has been appointed as a new magistrate. She will make an excellent addition to the bench.
— Women’s Legal Vic (@WomensLegalVic) March 1, 2017
With Fogerty she worked on a significant analysis of the 1971 Nabalco lands rights case. Ill health is the reason for her sudden retirement from the bench and we wish her well.
A few people are grumbling about the new-look Austlii, probably because they don’t like change of any sort, yet there’s much to be said for the redesign. Better type face, cleaner, clearer look, highly functional navigation – and there’s more to come with refinements to the search function.
Melbourne academic Jeremy Gans was among those having beef and we received an email for someone else saying Austlii should not have to pay for its new look.
— Jeremy Gans (@jeremy_gans) August 22, 2017
We got our expert in online law searching to give her synopsis:
The pluses:
- It is clean and pretty.
- The layout is easy to locate and to manoeuvre.
- As a repository it is good.
- The international citations are a great plus.
The minuses:
- It looks like new LexisNexis. Same colours, similar tabs.
- The search capability is not there yet.
Professor Andrew Mowbray, one of the directors of the Australasian Legal Information Institute, tells us the work was done in house under the direction of the institute’s executive director Dr Philip Chung with an outside design consultant.
The biggest challenge was the migration of such a vast amount of data and getting the interface right. The beta version was available for about 12 months so plenty of comments and feedback were taken into account.
In any event, for those who don’t like change the “classic” interface is still available and will be supported for as long as necessary. In due course, the new version of Austlii will allow for the mobile apps to be phased out as they will converge on phones and pads with the web design.
The Austlii users-guide is here and we’re told that new features will be added as improvements continue.
And the other great advantage remains intact – it’s free.
It only took a trifling 30 years but the Australian Law Reform Commission report on contempt which was published in 1987 has gone to the senate legal and constitutional affairs references committee for inquiry and report by November 28.
The committee is also having a look at the 2003 NSW Law Reform Commission report on contempt by publication.
The law of contempt is the new-new thing, what with three bone heads from Turnbull’s front bench recently scandalising VicAppeals.
We’ve also seen the great shower of suppression orders sprinkled like confetti by courts, particularly since legislation to facilitate this was introduced in NSW and Victoria.
Orders under the Court Suppression and No-Publication Orders Act (NSW) and the Orwellian Open Courts Act (Vic) are made with little to no attempt to properly balance the competing interests of open justice and prejudice.
Frequently orders remain fixed in place after a trial is over.
The senate committee has been tasked with looking at the ALRC recommendations that the common law principles be replaced by a statutory code; the NSW recommendations on the need “to achieve clarity and precision” in the law of sub-juice contempt; the importance of balancing freedom of speech and the right to a fair trial; public scrutiny of the operation of the courts while at the same time protecting the authority and reputation of the courts.
Gorgeous George Brandis will surely be making a submission. He has declared that it was perfectly proper for Peter Dutton to attack the Administrative Appeals Tribunal and for ministers Hunt, Judge and Sukkar to impugn the members of VicAppeals.
In defence of the ministers, who said the judges were “hard left” and soft on terrorism, the AG said:
“The courts cannot be and are not immune from criticism, which may extend to robust observations of a particular decision or penalty.”
In a recent article for the Gazette of Law & Journalism News Corp in-house lawyer Larina Mullins wrote about the off-hand, tick-a-box, way that some judicial officers grant no publication orders.
She noted that in the first half of this year alone, 500 suppression orders have been made – half of them from Victoria, and the other half mostly from New South Wales and South Australia.
In Victoria we have seen the return of the super-suppression order, where the order itself as well as its contents are suppressed.
But what can the senate actually do if state courts retreat further inside their shells?
The Sydney Morning Herald has reported a conviction of a women who took pills to procure the abortion of her child.
Local court magistrate Geoffrey Hiatt put her on a three-year good behaviour bond.
You wonder what the DPP is doing prosecuting these sorts of cases, particularly when no-one seems to have much of a clue about the origins of section 82 of the Crimes Act, NSW.
The prosecution lawyer told the court that parliament did not intend to limit the operation of the Crimes Act to cases where a woman intended to procure a miscarriage “prior to the non-viable gestation period”.
Law researcher and former DPP librarian Gayle Davies points out that when it comes to s.82 parliament did not intend anything because this law was received into NSW from the English Offences Against the Person Act, 1861 (ss.58 and 59).
Those sections were never considered by the NSW parliament and a search of the English Hansard reveals they were barely considered by the House of Commons.
They were enacted as an an update of Lord Lansdowne’s Act of 1828, which consolidated different Acts dealing with a variety of offences against the person, including murder and assault for which the penalties were death and whipping.
Sections 58 snd 59 were part of an even earlier consolidation – Lord Ellenborough’s Act of 1803.
If ever there was time to update NSW’s abortion law, this is it.