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Compensation for loss

Compensation for loss

By Russell Cocks

Real Property 


In the age of social media it is timely to ask whether the law is still fit for purpose. Snapshot Contract law forms the foundation for the lawyer-client relationship. In line with contract law generally, that relationship can be constituted by implication, independent of the lawyer’s intention. Being clear as to client identity is accordingly critical not just in managing risk but in fulfilling ethical responsibilities. In October 2018 the VLRC was asked by the Attorney-General to review and report on the law relating to contempt of court, the possible reform of the Judicial Proceedings Reports Act 1958 (JPRA) and the legal framework for enforcement of prohibitions. In light of the emergence of new media and citizen journalists, as well as changing understandings of juror decision making it is timely to ask whether the law is still fit for purpose. The central question guiding the inquiry is: What reforms to the laws of contempt, the JPRA and the Open Courts Act 2013 (Vic) are necessary to better support the proper and effective administration of justice? The VLRC is taking a principles-based approach to this review, considering the proper and effective administration of justice; freedom of expression; and open justice. Freedom of expression is guaranteed under the United Nations Universal Declaration of Human Rights, and in Victoria by the Charter of Human Rights and Responsibilities Act 2006. The Open Courts Act includes “a presumption in favour of the disclosure of information” which is meant “[t]o strengthen and promote the principles of open justice and free communication of information”. Having evolved over centuries, contempt law is today a complex mosaic of overlapping laws, some found in the common law, others in legislation. The laws of contempt operate as a limit on freedom of expression and open justice, for the purpose of ensuring the proper and effective administration of justice. The VLRC is evaluating the identified laws to assess how they balance those underlying principles, and what reform options exist. The VLRC is focusing on the most common manifestations of contempt. These are: contempt in the face of the court contempt by publication, in particular sub judice contempt contempt by jurors contempt by scandalising the court disobedience contempts. There is considerable overlap between these categories, and their precise definitions are often opaque. Contempt in the face of the court covers generally disruptive behaviour in court, which threatens the orderly disposition of court business. Contempt by publication can come into play when the media is reporting and commenting on cases. In 2017 an inexperienced journalist wrote about a murder trial containing prejudicial information that had not been raised in court. This resulted in the jury being discharged, the trial aborted, and the publisher convicted of sub judice contempt. The rise of citizen journalism and blogging by untrained reporters increases the risk of such events. With regard to publication contempts, the VLRC has also been asked to review the statutory prohibitions on publication in the JPRA. The JPRA restricts the publication of reports on judicial proceedings that include: Indecent matter or indecent medical details calculated to injure public morals details of divorce and related proceedings details of pre-trial hearings in the County and Supreme Courts, except as expressly stated particulars likely to lead to the identification of persons against whom a sexual offence is alleged to have been committed. Contravention of the prohibitions in the JPRA is a criminal offence punishable by fine and/or imprisonment. Jurors may commit contempt by conducting their own investigations, often via the internet or social media. Given the ubiquity of smartphones, this has become a widespread risk. Such activities may result in juries being discharged, verdicts set aside, and fines or imprisonment for the jurors involved. “Scandalising the court” is an archaic expression referring to any act done in writing which is calculated to impair public confidence in the court or to lower the authority of the court as a whole. Disobedience contempts are acts which involve the refusal to comply with a court order, judgment, or other processes of a court. The VLRC is assessing the current regime for the enforcement of prohibitions on the publication of information under the law relating to contempt, the JPRA and the Open Courts Act. Questions arising here include whether existing penalties are adequate; what the process is (and should be) for bringing contempt proceedings; and what defences are available. An overarching issue is the extent to which it is realistic and practical to enforce prohibitions on the dissemination of information, when almost everyone is able to easily access and publish information at the touch of a smartphone or keyboard. The sheer scale of online contempt means that it is rarely prosecuted. is column was provided by the VLRC. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.

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