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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