Hearne v Street  HCA 36, decided yesterday, presses so many of my buttons. First, I have not the slightest sympathy for the plaintiffs, who moved into apartments overlooking Sydney’s Luna Park, gaining all the benefits of views of Sydney Harbour that were unblockable because the iconic park could never be built on, but then objecting (like the Millers in Lord Denning’s famous judgment on newcomers who ‘came to the nuisance’ of village cricket) that the re-opened park was too noisy. In that, I’m not that different from most Sydneysiders, doubtless inflamed by articles like this one:
The NUMBY* files – Why Luna Park’s neighbours aren’t smiling
DISRUPTED violin lessons, entrapped Chinese herbal medicine fumes and smoking daughters have been cited by residents as reasons why Luna Park should shut down rides. The Daily Telegraph has seen several affidavits filed in the Supreme Court by Milsons Point residents against the amusement park, which re-opened in April last year. Here is a summary of some of the residents’ affidavits, which make interesting reading. The court is likely to decide in July whether to grant the residents’ injunction order to close down five rides. Luna Park says this order, if granted, could cause it major financial pain.
KEVIN SEETO Kevin Seeto and wife Judith purchased their Milsons Point unit in The Cavill, in Cliff St, Milsons Point, in 2001. Mr Seeto said he assumed that Luna Park would only re-open with noise guidelines to protect local residents. Mr Seeto said he is “forced” out of his own home by the noise on weekends and also has a major cooking problem. The smell from Asian cooking prepared by himself and his wife stinks out the apartment and they can’t open balcony windows to release the fumes due to noise. “This problem of odours is worse when Judith boils up Chinese herbal medicine,” the affidavit reads. “I find the smells from the Chinese herbal medicines to be putrid.”
BERYL LESKE, OBE The renowned violin teacher bought her Peninsula Tower unit with husband Clemens in 1999. Ms Leske is unhappy about noise from the Ranger ride which she claims stops her using her balcony and affects her violin teaching, done in the apartment. “It is impossible to teach when in the background there is constant squealing … it completely breaks concentration for me and the student,” the affidavit by Ms Leske reads. “Part of my teaching involves teaching students to project their music to an imaginary audience in the distance, in my case to McMahons Point. “With the sliding door shut, the exercise simply loses all impact.”
PHILLIP CAVE Mr Cave, who has bought an apartment at 30 Glen St, said one of the park’s side-effects is that one of his daughters no longer visits. He said she was not allowed to smoke in the home but doesn’t like smoking on the terrace, due to the screaming from patrons. “If I can only smoke on the condition that I listen to the screaming, I would rather not come here at all,” the daughter allegedly said.
And so on. Snort. NUMBY is helpfully defined as “Not Under My Balcony, the city cousin of the NIMBY”. This article was the start of the matter that the High Court decided, because the press was given the affidavits by the defendants, who had obtained them as part of compulsory court process. This, it turns out, was a breach of the law.
And that’s my second button pressed: I’ve spent many year battling to get documents out of court files, continually stonewalled by court bureaucrats who think that court files are owned by either them or the parties (and who seem to have trouble finding them anyway, not to mention charging extortionate fees to search and photocopy.) This a dramatic contrast to other countries, notably the US, whose federal courts put all filed documents on the net for a nominal fee for anyone who wants to look at them. Without such access, the only scrutiny of court process that is possible is by either attending at court, paying a smallfortune for a transcript or reading what is said about the evidence in a court’s judgment. On the rare occasions I’ve gotten access to documents, I’ve invariably found that the latter misrepresents the evidence (e.g. the major High Court case, Fox v Percy, which overruled expert reports about accident causation in favour of ‘incontrovertible evidence’ of skid marks; my search discovered that that evidence was a single unscaled stick-figure diagram no bigger than my thumb, drawn in the dark on a dirt road by a police officer who had it in for the tattooed plaintiff.) It’s no surprise that courts have no particular interest in exposing court files to scrutiny. In this case, the defendants had to hurriedly apologise for the article in the Tele and undertake not to release any more documents. Alas, two directors did release more documents to a NSW Minister and now have been found guilty of contempt.
And now for my third button: this aspect of the law on contempt (like other aspects) is a bit of the common law that demonstrates that any reference to the ‘genius’ of the law can only be sarcastic. In the middle of each of the last two centuries, English courts decided that documents obtained compulsorily as part of a litigation process come with a string attached: an ‘implied undertaking’ that the documents will only be used ‘for the proceedings’. Not only is this terminology inapt – the obligation arises whether or not any undertaken is given and applies to people (like the directors) regardless of whether they know of it – but the rule is bizarrely broad, covering not only genuinely compelled documents, confidential information, broad publication and wholly unrelated uses but (as here) documents released through routine discovery, stating evidence intended to be put publicly at trial, disseminated privately (with an instruction not to quote publicly) and for a legitimate purpose of (successfully!) lobbying for political support (by defendants to litigation against the plaintiffs.) I’m no contempt expert, but I wonder whether the same rule applies in criminal matters, something that would have had terrible ramifications for Mohammed Haneef, who is free today because of the ‘leaking’ of an interview transcript that the police had to provide as part of pre-trial criminal process. As it happens, even the High Court had to concede that no-one really knows whether contempt is a criminal or civil matter (a distinction vital here as the defendants were initially acquitted, before that was overturned by the Court of Appeal), with the Court having to rely on a vague test that seeks to distinguish between remedial and punitive motivations on the part of the plaintiffs!
Fourth button: the High Court, which showed not to slightest interest in reforming this (or any other) crappy law, despite making it clear that it is the only judicial body in Australia that is permitted to do so. Justice Kirby basically begged the plaintiffs to both ask for a reformulation of the law and also to seek a specific defence for their particular disclosure (to a minister as part of a lobbying process for remedial legislation, i.e. a form of petition to parliament.) But, despite the apparent merit to these arguments – constitutional free speech, anyone? – the plaintiffs wouldn’t bite. It’s not hard to see their thinking, as they looked past Kirbs to the four Howard-appointed drones that made up the rest of the bench. Instead, they eschewed arguments based on policy, modernisation and human rights in favour of a technical argument about the distinction between express and implied undertakings. Now there’s a choice that evinces total contempt of court (albeit wholly deserved.) It didn’t pay off: in a judgment obviously written by Heydon – it’s just a series of put-downs of the defendants’ arguments and a brief lecture on the law (he should blog!) – the majority dismissed the technical argument (instead stating the law of contempt in the broadest imaginable terms) and knocked back the parliamentary point with a nonsensical claim that petitioning is a vestige of an undemocratic franchise. (And see here for what Dyce thinks of the franchise!)
And that brings me to my fifth and final button, which is Charter-related (I always get there!): this combination of a lousy old law and a lousy old High Court is what human rights law is for. Wouldn’t it be great if Victoria’s court could change its approach to strike a new balance between the relevant rights, like freedom of expression, privacy and (perhaps) a fair hearing, rights that Victoria’s parliament says it wants to promote. Alas, it can’t happen. The drafters of the Charter deliberately exempted the common law from the operative provisions of the statute, citing a wholly speculative constitutional concern about the relationship between state parliaments, state courts and the common law (and neglecting the simple expedient of including the common law but with a severability clause to ward off the chance that the High Court would share this concern.) The result is that any incompatibility between the common law and human rights is a matter for the High Court (ha!) or parliament, sans the human rights dialogue that is available for statutory provisions. The only hope for Charter-focused reform rests with VEOHRC and the Attorney-General (who each have a lot on their plate):
41 The Commission has the following functions in relation to this Charter-
(a) to present to the Attorney-General an annual report that examines- (i) the operation of this Charter, including its interaction with other statutory provisions and the common law… and
(b) when requested by the Attorney-General, to review the effect of statutory provisions and the common law on human rights and report in writing to the Attorney-General on the results of the review…
As for the defendants in NSW, their best bet is reform by the NSW parliament. Alas, the High Court’s own ruling ensures that any attempts will have to be made without disclosing documents supplied by the plaintiffs, no matter how compelling a case they raise for that change.