It is rare for the mainstream media to attack judges decisions let alone raise the judges backgrounds as reasoning for a perceived wrong judgement. But it happened on Monday (20/5/13) when Paul Sheehan of Fairfax Media unloaded on the judgement of three Federal Court judges in a matter that is now under appeal in the High Court. It relates to a Commonwealth public servant sustaining injuries during the course of sex and then being awarded workers compensation.
While it might not seem like much to some, there is the criminal offence of “scandalising the court” that journalists need to skirt around to make sure they do not end up on criminal charges. “Scandalising the court refers to conduct which denigrates judges or the court so as to undermine public confidence in the administration of justice.”
Sheehan has not overstepped the mark and broken the law. But he has given it a big nudge for a mainstream journalist.
Background
“The Federal Court of Australia has held that an employer was liable for injuries sustained by an employee while having sexual intercourse on a work-related overnight stay.”
“In the case of PVYW v Comcare, an employee of a government department suffered an injury whilst in a motel in country New South Wales. The employee had been required by her employer to travel to the country town to conduct budget reviews and provide training.”
“The employee stayed at a motel that was booked by her employer. During her overnight stay, the employee met with an acquaintance. Whilst the pair were having sexual intercourse, a light fitting was pulled from the bed mount and caused injuries to the employee’s nose and mouth. The employee required hospital treatment and subsequently lodged a worker’s compensation claim.” (Click here to read more)
On the face of it the first thought is the judgement is a joke but the case I believe is a complex one. Should she be covered if she was just sleeping in the bed? I think the average person would think that it should be covered for compensation because the only reason she was in the hotel bed was because her employer wanted her in that town for work. But if she was covered for compensation if she is just sleeping why should she not be covered while having sex?
Then the question has to be asked exactly how the light fitting came to fall on her. If she or her partner pulled the light fittings off then I think she should not be covered. The arguments on both sides are endless and while initially I totally agreed with Paul Sheehan that the judgement is shocker, after further consideration I do not think it is easily clear-cut either way.
The three judges who handed down the judgement are Chief Justice Patrick Keane (now a High Court Judge) who I have written plenty about on this site, Justice Robert Buchanan and Justice Mordecai Bromberg. Comcare v PVYW [2012] FCAFC 181 (13 December 2012) I have had dealings with Buchanan and seen his handiwork firsthand and it isn’t pretty.
Paul Sheehan said in his article:
“It is unedifying to see senior judges disadvantaged by the vigorous sexual activity of a young woman, but this is a self-inflicted wound a full bench of the Federal Court of Australia has brought on itself.”
“The Commonwealth public servant, a woman to whom we shall give the nom de guerre Dolores Tremble, is going to cost you, me and the rest of the taxpayers more than $1 million before she is done, all while being shrouded, coddled, protected and compensated by judges who have detached themselves from community standards and common sense.”
“This case is part of a creeping paternalism in the courts, which are proving themselves, overall, biased against blameless employers.”
“The judgment in Comcare v PVYW is a case study. It does not surprise me that Justice Keane has since been elevated to the High Court by Julia Gillard. It surprises me even less that Justice Bromberg is a former endorsed Labor candidate for Federal Parliament. He is also a former president of the union-funded Australian Institute of Employment Rights.” (Click here to read the full article)
Sheehan also has a swipe at Justice Buchanan given his previous judgement in the Vivienne Dye / Commonwealth Bank sexual harassment case. (Click here to read more)
But the real danger part for Sheehan in overstepping the boundaries of scandalising the court is what he says about Justice Bromberg. He clearly implies that it is his political and union ties and background that have influenced his decision. I have written similar in numerous posts but it is almost unheard of in the mainstream media.
An example of someone who did overstep the mark and scandalised the court is:
Gallagher v Durack (1983)
“Gallagher was a senior official with the Labourer’s Association and Keeley J found him in contempt of court and sentenced him to 28 days in prison. After a successful appeal from an earlier conviction Norm Gallagher, then federal secretary of the Australian building construction Employees’ and Builders’, Labours’ Federation made the following comment outside the Federation quarter: “I’m very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs…… I believe that that has been the main reason for the court changing its mind.”
“The Federal court held that the statement was a contempt of court and sentenced Norm Gallagher to 3 months jail.” (Click here to read more)
What Gallagher said is obviously a lot worse than what Paul Sheehan said but Sheehan was heading in that direction although did not overstep the mark.
This site questions judge’s backgrounds and criminal conduct all the time as it is the key focus of this site. I have never been charged with scandalising the court because what I write is true.
I fully applaud Paul Sheehan and there should be more of it, especially when the decision is clearly wrong although the case he has chosen is a tough one and might not be a wrong judgement. The media need to ask more often who are these judges that handed down the judgement and what are their backgrounds and history which might tell why they handed down the dodgy judgement.
With more journalists like Paul Sheehan asking the right questions change in the judiciary will eventually happen as the pressure will become too much for the federal and state governments. Sites like this one put pressure on the mainstream media to start asking the right questions. I see the judiciary as the hub of the wheel of corruption and the rest such as political, government and police corruption flow off it. If judicial corruption is stopped in a substantial way I believe it will greatly reduce corruption in other parts of society.
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I agree Shane – before we clean up the mess society is in, we have to start with the judiciary system where, it would appear apparent is rife with corruption.
Typical example Mallard and Mallard v Morgan and Morgan v WorkCover. Some of the judicial officers should hang their heads in shame. Never ever, ever will I report any misconduct or crime. They sure do protect their own. I will fight for justice till the day I die. The Whistleblowers alleged Protection Act is an entrapment for malicious reprisals when making a Public Interest Disclosure, so be warned.
If it happened during the day when she was supposed to be working she should be sacked. If it happened at night or the weekend then it happened during her own time.
However, judges should be concentrating on the more serious offences which are denigrating Australia.
It will be interesting to see what will happen there.
Shane, you seem very optimistic in that the judiciary may change to an honest system, I wonder why you think that, I have seen no sign of any change, just look at the Slipper and Thomson cases.
The manner in which Gillard has stacked The Fair Work Commission is a perfect example.
There is no doubt that more people are questioning this, but I cannot see any more at present.
This site and only a few others are onto it, the MSM
on the whole receive their pay under false pretences.
In the past there has been almost no media coverage on corruption in the judiciary. That is changing and the voice will grow louder over time as the pressure is kept up. So it might not change today but it will change.
Isn’t the hotel liable and not the commonwealth?
Check out the WorkCover “Scheme Critical” list provided to Judges, shame, shame,shame.
I found the “Scheme Critical” list on a politicians website.
It has been alleged that WorkCover has at various times illegally compiled, used and disseminated a “Scheme Critical List”.
The practice behind the “Scheme Critical List” was exposed on the SBS Insight Program for 15/6/2000 titled “Bullies at Work”, where it was alleged that the “Scheme Critical List” is a “hit list” issued by WorkCover and widely circulated to the judiciary across all Courts (including Supreme and High Courts) and Tribunals, as well as agents and legal representatives for the Corporation. It was said that the cases that appear on the list are those which are deemed to hold a “significant financial or legislative impact” for the WorkCover Corporation. In other words, they are cases which uniquely represent all other claims on which the Corporation does not want to have to pay out and which are ear-marked for “special treatment” and obstruction.
For more: http://www.bressington.net/sub/Policies/WorkCover.htm
How do you find out if you are on this list, I am sure I am. I have a solid case against WorkCover for breach of the Whistleblowers Act, the Foi Act and sec 112 of the WorkCover Act, I was made an offer, yet Ex Judge Griffin ruled against the weight of the evidence. I am a litigant in person, as I had a bad experience with two lawyers. As they say “Injustice anywhere is a threat to Justice everywhere” never a truer word spoken
Please keep on topic of the post. I will look into the “Scheme Critical” list further and maybe do a post on it.
I agree with “nottwistedyet” as it appears the Judiciary are going to put the Slipper and Thomson cases off until the forthcoming election in Sept .Another case of making the arrangements to suit the Party!
I agree with JD Lord. This matter should have been settled, in a common sense way as he suggested, in the lower courts. There are much more serious issues that the High Court should be dealing with – corrupt judges in the secret Family Court, for example. The High Court is refusing to take on any case where corrupt judges are in the sights (despite section 75 (v) in the Constitution, which the High Court is currently disobeying). Is this because too many of them on the High Court are corrupt themselves?
I agree with Uloola 12 .34 now that workers comp has been paid workers comp should go after the hotel.
It’s worth asking why the hotel did not compensate the injured party.Possibly because if the person claimed on the hotel insurance the injured party would have to pay for a solicitor,whereas claiming on the employer the claimants costs are covered,any thoughts?
I’ve been a fan of Sheehan’s since reading his book, “Barbarians At The Gate” years ago and have, in the main, agreed with his opinions since that time. Sometimes, a little too much of an apologist for the Liberal Party as, after all, let’s face it, both parties work in synchronicity, Labor first creating the debt so that Liberal can come in and sell off public assets paid for by the taxes of ordinary Australians. Two wings of the same bird both being controlled by the United Nations which in turn is controlled by the global banks; but, I guess, that truth would be too much for even the great Paul Sheehan to divulge.
As for the scandalisation of the courts, the judicial system within Australia needs no external assistance from Sheehan or anybody else; it does a fine enough job on it’s own on a daily basis of undermining public confidence through the attitudes and actions of the wigs, registrars, court orderlies and security staff who treat the majority of people attending hearings as if they were convicted offenders regardless of whether they are pleading a defense or simply bearing witness in the public gallery. It’s utterly disgraceful more often than not.
In Western Australia, it is actually so bad that the principal tenet of the Westminster System, namely the separation of powers, has been largely ignored with Wayne Martin sharing the duel office of Chief Justice of the State (Judicial Power) as well as being the Lieutenant Governor of the State (Executuve Power). This is well known by all the other ‘powers-that-be’ throughout the Commonwealth but nothing is being done to reverse the wrongdoing that occurs every day as a result.
Finally, great article today, Shane. Let Paul know that many people applaud his bravery in writing his piece as they do yourself for providing the Kangaroo Court Website. Duly shared via email and social media.
Excuse my ignorance but what were her injuries? For this to cost the tax payer over a million dollars she must have surcumbed pretty bad injuries?
The million dollars relates to the legal fees it will cost tax payers not her injuries.
Shane,
sorry for the ingorance, but what were the circumstances of the light contacting the plainitiff causing the injury? Was there any physical interference with the light by either the plaintiff or the other party/s?
What style of light are we considering? A light over a bed, a table lamp, surely not a chandelier!?
What casued it to dislodge from it’s proper place? not screweed in properly to its mounting, vibrations? Being pulled?
If the motel is to be considered liable as some commentators suggest, those matters and the full circumstances need to be known.
Well H.W.S, I suppose someone had to be the one to say chandelier. I tried not to.
The problem is not the woman or her injuries; The problem is the JUdges!
Workcover will get money from the Hotel’s insurers anyway and the lawyers will have the biggest picnic. The Workover is a totally corrupted legal cesspool in which many Injured Workers are drowned. I’m sure if that worker had got out of bed and tripped on the mat and injured herself, her claim would be more cut and dried. It’s only the old moralism about sex and its place in the universe that is clouding the opposition to this judgement.
The reference to the Vivienne Dye case (see link) makes a point. Dye took on CommSec over sexual harassment and lost – big time. The court ordered indemnity costs against her which ended up around $6M. That would mean bankruptcy or in other words, don’t bring this stuff to court to upset the big end of town. The CommSec guys ended up smelling like roses … how interesting to now read this case …