this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.


Every Issue

Cite as: (2002) 76(10) LIJ, p.8

We welcome letters to the editor of no more than 400 words.
Email: Fax: 9607 9451.
Mail: LIJ, Managing Editor Mick Paskos, GPO Box 263C, Melbourne 3001; or DX 350 Melbourne.
We reserve the right to edit letters and to republish them in their original or edited form on the
Internet or in other media. Letters must include a phone number and address for authentication.

Ban on Legal Aid work

Cite as: (2002) 76(10) LIJ, p.8

Our firm has recently decided not to undertake Legal Aid family law cases in the future.

We are attending to the existing commitments, but have decided to no longer undertake this work for the following reasons:

We believe the Legal Aid fees are inadequate. They have been slightly increased recently, but this is nowhere near a sufficient increase to provide any incentive to continue doing this type of work.

The reporting requirements of Victoria Legal Aid are far too onerous. When one also takes into account the restrictions under the cap and the fact that Legal Aid effectively requires us to pay disbursements in advance, it just becomes too difficult to do this type of work.

The functioning of the Family Court provides little incentive to undertake this work. Although many of the Court staff are, at an individual level, extremely helpful, the reality is that there are inordinate delays associated with the filing of documents. Furthermore, some of the practices of the Court, such as no longer allowing lawyers to give undertakings to file birth certificates, hardly encourage lawyers to be enthusiastic about practising in this area. It should be noted that the Family Court likes to have all the trappings of a superior court, such as requiring lawyers to prepare typed minutes of orders, however, the fees that are paid are hardly consistent with this. In summary, the Court has champagne tastes, but the lawyers are only paid beer wages.

It is unfortunate our firm is no longer prepared to fill the gap between what the state will provide for these cases and what the Court and clients expect of practitioners. We all know that Victoria Legal Aid, the federal government, the state government and the courts spend a lot of time debating and some times blaming each other for the problems associated with publicly-funded family law cases.

Whoever is to bless or blame, the reality is the system is not working.

For our part, we are simply retreating from the system. In recent times, Legal Aid clients have come to our office requesting service and we have sent them away disappointed. From speaking to fellow practitioners, we know that we are not alone in the position that we have taken. The consequence of it all will be an increasing number of unrepresented litigants appearing before the Family Court.

Unless improvements are made these problems will only get worse.


For providing the letter of the month, Bernard R Keating has won a $50 book voucher from the Law Institute bookshop.

Fair access to the courts

Cite as: (2002) 76(10) LIJ, p.8

My clients would be interested to hear that, according to John O’Brien (October 2002, LIJ, page 10), they and their cases reside in the gutters, where I, as a solicitor in one of the “ambulance chasing cartels” apparently trawl for their work.

My clients are injured people. They come to me for advice to determine whether or not their injuries were caused by the
negligence of the medical profession and whether they would be entitled to compensation. Usually my answer to that question is that they do not have a viable claim. My firm’s data indicates that we issue proceedings in one case for every 25 to 30 clients who initially consult us. My clients are usually grateful that they have not had to pay a substantial legal fee simply to be told they have no case.

Nor do the statistics support Mr O’Brien’s view that plaintiff lawyers issue claims on a whim. In Victoria, the health industry delivers more than 80 million health services a year. Various studies have suggested that adverse outcomes may be expected to be in the order of 12 to 16 per cent, and negligent outcomes between 5 and 8 per cent. A report this year alleged that there was about 140,000 medication/prescription errors made across Australia each year.

Yet how many cases are there in Victorian courts? Less than 400, and we resolve about 250 a year. The number of cases has been stable for the past four to five years.

To use Mr O’Brien’s example, if a psychiatrist or health professional provided their services on a “no cure, no fee” basis they would be very selective about those patients they took on, or face bankruptcy.

His barb at juries is misguided. Most claims in NSW are heard by judge alone. In Victoria, it is the defendant and MDOs that seek trial by jury, rarely the plaintiff. They do so because juries treat doctors sympathetically.

TAC and WorkCover employ more than 400 people, handle about 30,000 to 40,000 claims per year each, and compensate injuries on a no fault, common law basis. Claim forms are available at hospitals and doctors surgeries. I would be surprised if the medical profession or the government would consider that an affordable response to the medical indemnity issue, having regard to the statistical data on adverse outcomes.

Victims of medical negligence are often significantly injured. They may have underlying illnesses. Often they are not in employment, or have become incapacitated for work because of their injuries. Offering such victims access to justice, which would be unavailable to them if they had to meet high upfront fees, upholds the very highest values of our profession. It is far more just and ethical than allowing only the rich, who can afford legal advice, access to the courts.


Treat the disease

Cite as: (2002) 76(10) LIJ, p.8

I refer to the letter of Felicity Hampel SC (October 2002, LIJ, page 11) in which she states that “harsher” punishment is no answer to crime and that it will not solve the problem of sexual offending. Obviously it is not, nor is it meant to be a complete solution. Nevertheless, it may send a strong message as to how society views particular crimes, while also providing protection for society from further criminal acts by the offender. In the same way, not all persons who have an illness may be medically treated in the community. Some have to be either institutionalised or quarantined for the protection of society. Institutionalising or quarantining a patient, like harsher sentencing, should be a last but necessary resort.

Ms Hampel provides statistical information on the tragic incidence of rape and convictions. Yet, if one carries Ms Hampel’s argument to its “illogical” conclusion one could argue that it would serve the community’s interest to have lighter sentencing for horrendous crimes. I trust this is not her view.

It would appear that Ms Hampel is quite comfortable with the adversarial system and is wedded to the concept that the lawyer serves the interest of justice merely by defending the accused. Perhaps this social problem demands a little lateral thinking. I suggest two courses.

Change our prison and punishment system to one of correction and rehabilitation in the truest possible sense, removing the stigma attached to crime.

As a “trade-off” lower the standard of proof required for conviction.

Before I am tarred and feather by Liberty Victoria and other members of our profession, let me point out that this would make our profession part of the process of treating the social disease which is crime, rather than fulfilling our profession’s traditional role of denying that the accused has the disease.


Creative thinking

Cite as: (2002) 76(10) LIJ, p.9

I have noted with interest the recent emerging debate about the proposed ACTU test case to extend employees’ rights to unpaid parental leave. Echoing laws in force in England, the ACTU seeks to extend the existing rights of the primary care giver of a child from one year of unpaid parental leave to three years of unpaid parental leave. It also wants the employee to be able to elect to return to work part-time or work flexible hours to meet family responsibilities, and have available extra emergency leave for a short-term family crisis. Finally, the ACTU wants employees to have the option to “purchase” six weeks’ of extra leave per year, by averaging their salary for 46 weeks over the 52-week year.

Victorian Women Lawyers (VWL) welcomes debate on flexible work arrangements, such as those proposed by the ACTU, as one in which the legal profession should also engage.

With careful management and consideration of the competing needs of work and family, VWL believes these kinds of initiatives can be of mutual benefit to law firms and their employees. It shows how creative thinking can help employees without additional financial outlay by law firms.


Homelessness and the law

Cite as: (2002) 76(10) LIJ, p.9

About one year ago, the Homeless Persons’ Legal Clinic was established as a joint project of the Public Interest Law Clearing House (PILCH) and the Council to Homeless Persons to provide free legal services to people who are homeless or at risk of homelessness. The aims of the clinic include identifying the range of legal issues confronting homeless people, and examining and conducting advocacy regarding relevant law reform and social policy issues.

In its work to date, the clinic has identified the following key issues:

  • Many homeless people are disproportionately and discriminatorily affected by the formulation and application of laws, such as anti-begging provisions and voting registration laws, without regard to socio-economic status.
  • Homelessness can render unlawful behaviours that would be lawful if performed in a home. Laws that criminalise conduct such as sleeping, bathing, lying, drinking or storing belongings in public space impact on homeless people on the ground of their housing status, and the necessary location of their conduct.
  • Inadequate protective legislation and a lack of access to resources and remedies mean that the rights of many homeless people are violated by individuals and organisations who can act with relative impunity. Discrimination against the homeless is widespread in the areas of accommodation and the provision of goods and services.

In the clinic’s view, any meaningful notion of justice requires that law formulation and application to account for socio-economic context. Legal, social and economic responses that eliminate inequality and promote human dignity and agency are crucial to the construction of sustainable pathways out of homelessness.

Strategies in this regard include:

  • involving homeless people in decision-making processes and the formulation of laws that affect them;
  • committing greater care and resources to addressing underlying causes of homelessness, such as domestic violence, mental illness, substance abuse, gambling and poverty;
  • educating and sensitising law makers and law enforcement officers as to issues regarding homelessness;
  • expanding and strengthening protective legislation, such as the Equal Opportunity Act; and
  • providing homeless people with the means and resources to vindicate their rights with the assistance of organisations such as the Homeless Persons’ Legal Clinic and the Council to Homeless Persons.



Leave message

 Security code
LIV Social