Isn’t there something in the Charter about this?

I had a good chuckle when I read about these catchwords in the latest judgment from Heerey J:

FEDERAL COURT OF AUSTRALIA

Granada Tavern v Smith [2008] FCA 646

INDUSTRIAL LAW – appeal from Federal Magistrates Court – whether error in finding employer applied duress to employee in connection with an Australian Workplace Agreement

EVIDENCE – proper application of Briginshaw principle – isn’t there something in the Evidence Act about this?

PRACTICE AND PROCEDURE – adequate reasons for judgment

Catchwords by dictaphone? And this, from a judge who applied the common knowledge rule in a case governed by the Evidence Act 1995 (Cth)? Too hilarious. But the joke’s on me:

In the light of the Full Court’s decision in Gama one does not say: “Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies”. Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c)…

Gama is an important decision, not least for throwing light on an intriguing phenomenon in Australian professional legal culture. The resilience of the common law is such that in practice the Evidence Act is often overlooked. In my own experience, in the period of well over a decade since the Evidence Act was introduced Briginshaw is without fail cited in witness actions – with the possible exception of patent infringement cases – but I do not recall ever being referred to s 140. This is not to say it never happens, but a search of the Federal Court internal judgment database reveals only six decisions, apart from Gama, (including one in the Full Court) in which the covering list of legislation and cases cited refers to both s 140 and Briginshaw.

Justice Heerey’s point about the resilience of the common law after thirteen years of uniform evidence legislation reminds me of a comment about human rights laws made by a Canadian law professor in a class on criminal trials that I attended at UNSW about ten years ago. Back then, in the early days of the UEL, we evidence academics were disappointed at how rarely the new statute was mentioned, let alone analysed, by the NSW courts. The Canadian responded that, in the early years of the Canadian Charter, people used to despair at how little the new rights law was being raised in Canadian courtrooms. But, a few years after, Canadians would marvel at how few cases came up where there wasn’t a Charter issue.

This proved to be an illuminating comparson: no-one litigating in NSW courts – criminal ones at least –  is complaining now about the under-referencing of the UEL. It’s an interesting point to ponder at this decidely pre-glut phase of citations of the Charter in Victorian courts. Will Victoria’s courts be more like the Canadians and NSWalers, or the Feds?

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