Victoria’s lawyers being sued in landmark test case
Thursday 15 October 2009
A senior human rights lawyer has joined the backlash of criticism of Victoria's lawyers and judges including recent damning criticisms by Federal Attorney-General Robert McClelland and Victorian Attorney-General Rob Hulls.
Human rights lawyer and activist James Johnson from law firm Sutton Lawyers has launched a test case to confirm that, thanks to the new Victorian Charter of Human Rights and Responsibilities, Victorians can now for the first time sue Australian barristers and solicitors for negligence and other improper conduct in Court proceedings - even if other Australian's are not as lucky.
Mr Johnson alleges that he was disadvantaged by the negligent and unethical practices of lawyers during recent legal proceedings. Now, in a landmark test case Mr Johnson is testing the new human rights laws, suing the Minister for Human Services Usa Neville, 4 family law lawyers and a family law court judge. "Australia's barristers and litigation solicitors are the only professionals who are not legally liable for negligence in the work place," he said. "This situation no longer exists in other English speaking legal systems.
Laws in Britain, the US, Canada and a host of European countries have removed lawyers' immunities, and citizens in those countries are able to sue lawyers over their actions, words and conduct in court."
The announcement of Mr Johnson's test case comes not long after the publication of a damning report by Victorian State Ombudsman George Brouwer reporting on large scale misconduct and incompetence by Victoria's peak legal regulator, Victorian Legal Services Commissioner Ms Victoria Marles, who has subsequently tendered her resignation.
Mr Johnson says that basic human rights, including the right to a fair trial and the principle of equality under the law are key rights guaranteed by Mr Hull's Human Rights Charter. Mr Johnson claims that during the recent Court proceedings he suffered substantial injustice when he was denied these basic human rights. "Special laws made by judges protecting lawyers from negligence claims have always been incompatible with the basic human right of equality under the law. Basic rights to a fair hearing are also undermined when barristers are able to get away with negligent, unethical and even fraudulent misconduct."
"These special laws just for lawyers have bred arrogance among a small group of lawyers and it flies in the face of Victoria's Charter of Human Rights," he said. "Our Victorian Attorney-General Rob Hulls has publicly criticised judges for their aloofness has been demanding cultural change. But these same cultural attitudes of superiority are prevalent throughout the legal profession. Barristers and solicitors and not just judges need to undergo urgent cultural change. We have a situation where a small number of negligent and corrupt lawyers are causing irreparable damage to the professional images of a majority of hard-working, ethical and competent lawyers. And the legal professional bodies and regulators are slow to respond to the problem."
Other prominent lawyers have expressed the same kinds of concerns as Mr Johnson. Retired Victorian
Supreme Court Judge, Professor George Hampel has been a long time advocate of universal professional negligence laws, arguing that it is for the good of the profession as well as for the good of the public, that negligence laws should not discriminate in favour of lawyers.
Retired High Court Justice Michael Kirby also been vocal in criticisng this historical defect in Australian's professional negligence laws working in favour of lawyers. He served up a strong rebuke to his fellow judges and lawyers in 2005, the last time the High Court heard a case challenging for the right to sue a barrister for negligence.
"I question why an anomalous immunity is not only preserved in Australia but now actually enlarged by a binding legal rule that will include out-of-court advisings and extend to protect solicitors as well as barristers," he wrote. 'With all due respect to those of the contrary view, I regard such a decision as legally erroneous, unwarranted and unworthy.""Over the course of a century, (the High Court) has heard countless cases in which negligence has been alleged against professional and other skilled persons. Thus, it has held to legal account architects, civil engineers, dental surgeons, and specialist physicians and surgeons, anaesthetists, electrical contractors, persons providing financial advice, police officers, builders, pilots solicitors (in respect of out-of-court advice) and teachers," he said, saying it was impossible to see how lawyers could justify special treatment by the law.
But in 2005 the majority of other Judges sitting on the High Court disagreed. They noted that, unlike the United Kingdom, Australia did not yet have a national Bill of Rights. Mr Johnson said that "Back in 2005 the absence of a national Bill of Rights allowed wriggle room for the majority of the High Court Judges to rule that Victoria's barristers and solicitors, including me, were somehow special compared to all other Australian professionals.
The High Court, by a majority went against the international trend to put lawyers on the same legal status as everyone else. Over Justice Kirby's criticisms they extended the law to protect Victoria's litigation solicitors, not just Victoria's barristers, from professional negligence law suits."
Australia today is one of only three countries (along with Burma and Chile) that still doesn't have a national Bill of Human Rights. But, as Mr Johnson points out, Victoria now has a Charter of Human Rights and Responsibilities.
According to Mr Johnson "Justice Kirby delivered a strongly written rebuke to his fellow Judges, saying that these laws keeping special legal protection for lawyers was nothing more than what he called an 'inadmissible empathy' - a 'sympathetic understanding confined to lawyers', because Australian judges are themselves lawyers. The outrageousness of the special protection speaks for itself since these bad laws have been removed in all other English speaking countries.
Justice Kirby said that this excuse 'will not do'. And there are many honest, dedicated lawyers who agree with him." "Equality under the law, the 'rule of law' is the single biggest contribution the English legal system has made to democracy, world peace and prosperity. It is something that English judges and courts have championed for hundreds of years - well before Attorney-General Hull's Victorian Charter of Human Rights and Responsibilities. And yet, somehow, English judges managed to create laws protecting English lawyers from being sued for negligence and a whole range of other kinds of misconduct during court proceedings.
Then, somehow, while ever other English speaking country realised during the 20th century that these special laws were wrong and removed them, in 2005 Australia's judges actually went with new laws discriminating even more favourably in favour of Australian lawyers.
According to Mr Johnson "The challenge for human rights lawyers and advocates will be if this test case is not succesful. Special laws protecting negligent barristers and solicitors from being sued are a major, if not fatal, road block to the introduction of human rights laws. Whether we are talki.ng about the Victorian Charter of Human Rights and Responsibilities which is existing law, or we are talking about a future Bill of Rights for Australia. If our lawyers wont accept something as basic as equal liability under professional negligence laws they can hardly be counted on to stand up and protect Australian's against other human rights violations either.
It is no coincidence that Australia has the third worst human rights records amongst the 132 members of the United Nations."
Mr Johnson hopes that his test case will bring Australia's laws, and Australian lawyers, into line with standards in other English speaking countries. "Australia's lawyers and professional bodies should be welcoming and encouraging this reform just as English lawyers did in 2000. New laws, demonstrated by a handful of cases requiring a few unethical lawyers to compensate people they have wronged will do wonders to improve public faith in the integrity of the legal profession."
Attached the article from Sunday's Herald Sun on one of several test cases that human rights law firm, Sutton Lawyers (of 1st Floor 141 Osborne Street South Yarra Vic 3141) is currently running in the Victorian Supreme Court.
As luck would have it, attached is a second article (on an unrelated case) where senior lawyers misbehaving in the Supreme Court have been strongly rebuked and face serious misconduct charges. This is a good sign (especially in the context of the criticisms of judges and other lawyers that have been aired by the Victorian and the Federal Attorney-Generals in recent weeks).
This sort of misconduct by lawyers is of course par for the course in the family law courts. Sutton Lawyer's test case in the Supreme Court involves misconduct by 4 family lawyers misbehaving in the
Supreme Court and in the family court and 2 judges (supreme court and family court). It is only a matter of time until these family lawyers are ordered to pay substantial civil damages, and face serious
professional disciplinary proceedings and probably criminal charges too.
Please FORWARD this email and attachments, please post them etc far and wide to all dads groups and journalists in your contact list, with a request that they also on-forward, post etc.
As one of several initiatives I am looking to establish a mens right group to be known as 'Women In Favour of Equality' (ie WIFE organization) learning from how the female suffragettes achieved 'equal political rights' at the turn of the 1900s only because of the actions of men like HG Wells who were 'men in favour of equality.' So I would be especially pleased to hear from women willing to take up positive roles in WIFE Organization.
The best way for anyone to contact me is by ordinary snail mail at Sutton Lawyers (as per above postal address). Now is the time for the truth to be put out to everyone who is willing to receive it.
I have reason to believe (inside information) that the national family court industry, worth $6bn per annum to these corrupt family lawyers, is in danger of very substantial collapse from within. Stay tuned for
Best wishes James Johnson Human Rights Lawyer