Chelmsford is Australia’s worst case of the deadly combination of lawyerisation and the culture of silence.
What I call lawyerisation is where people shovel money into lawyers at one end of the system to ensure there is no result at the other.
The culture of silence is the law that puts all the onus on person exercising the so-called right to speak freely. That onus is to prove the truth of every word uttered and to prove the truth of the an imputation that a lawyer might be able to extract from your words.
There is no onus on the silencers. There is no onus for them to prove they suffered damage.
The result is that in Australia wrong-doers get away with it too often.
Cases of lawyerisation go on all the time, not only in the medical world but in the business world, too. There are appeals on preliminary issues and evidence and process. The thing never seems to get to the substance.
And anyone who dares discuss the case gets hit with defamation and/or contempt writs and/or warnings to ensure that lawyers have not only a monopoly of the carriage of a case in the courts, but also of the carriage of public opinion of any of the broader issues that might surround a case.
Keith Wright’s rape case is a good example of the difference money makes. He got what he deserved and quickly. If he had a couple of million to spend on lawyers, he’d probably be on bail and only on his first procedural point to the High Court.
The only thing that happened with any speed in the Chelmsford case were the silencers: the defamation and contempt writs. They came within days of television screening. They were not pursued, but they had the desired effect: to silence the critic.
Two reforms would help cut the effects of lawyerisation and the culture of silence.
One was promoted earlier this month by the Trade Practices Commission. It said, “”Lawyers should be able to charge on the basis of receiving a fee only if successful, that fee being their normal fee plus, say, 25 per cent.”
Contingency fees focus lawyers’ minds. They advise against taking on hopeless. The commission, unfortunately, rejected contingency fees based on a percentage of the verdict. That would be more salutary for lawyers because they would not waste time and money on useless procedural points.
Contingency fees would give some avenue to people like Barry Hart. However, they would have to be combined with reforms to get rid of lawyers’ monopoly rights on things like conveyancing. That monopoly gives them easy money in some areas diverting lawyers’ attention from the more difficult cases.
The second reform is to enable the cleansing light of publicity to shine more freely.
Chemlsford nurses complained to authorities in early 1970s. But nothing was done. They and relatives of victims were threatened with defamation proceedings if they spoke out. Even if they had gone to the media earlier, the media would have had a difficult time doing anything because the defamation laws make it so hard to expose wrong-doing.
Even if the media make all reasonable inquiry and give all parties the opportunity for a full run, the slightest mistake can result in huge damages.
A wrong-doer can hang-up and sue. And refusing to talk is never held against him in defamation. In every other area of the law, plaintiffs have to show they did their best to mitigate any damage. The plaintiff has no requirement by the law to show that the publisher was negligent, reckless or malicious.
The onus is the wrong way and it creates a culture of silence.
Lawyers like the culture of silence. Not only do they profit from the defamation industry, but if the press is muzzled it requires expensive royal commissions to get the truth: the Chelmsford one costs $15 million. Fitzgerald and WA Inc more.