The Attorney General of Victoria Rob Hulls received a letter in December last year from the now former President of the Law Institute of Victoria, Bill O’Shea. The letter identified concerns expressed by the litigation lawyers’ section of the Law Institute with the continuing industrial action by the Magistrates Court, County Court and Sheriff’s Office staff.

“Members of the public are being denied access to justice, they cannot issue proceedings, enter judgment and so on,” the letter stated.

Cost implications for clients were also a significant focus in the former president’s list of complaints. O’Shea stressed hearings that would usually be adjourned “on the papers” now required an appearance by the practitioners. “As you will appreciate this is a considerable addition to the costs incurred by the parties,” he said. “Members (of the Law Institute) in litigation and debt recovery practices report that staff are idle because the courts are not accepting documents for processing.”

Law Institute of Victoria CEO John Cain agreed costs were an issue and that they were limiting access to justice. He told Lawyers Weekly the bans were increasing the cost of litigation “because administrative features are normally in place”.

While the Community and Public Sector Union are currently negotiating new enterprise agreements that will cover state government employees and maintain that the government is offering a “lousy pay offer”, according to spokesperson Julian Kennelly, the matter does not seem to be headed for resolution in the near future.

The long term ramifications of the lengthy wait concerned O’Shea.

“Already there is a huge backlog of documents in urgent need of processing. It must follow that once the bans are lifted there will be significant delays for a considerable time thereafter,” he wrote in his letter to the Attorney General. More drastically, he added that “this can only have a negative impact upon public confidence in the justice system”.

Acknowledging that there were some limited alternatives that could allow solicitors to have urgent subpoenas issued by presenting them to the magistrate in court, he stressed that such action involved personal action for the solicitor, when usually it is an administrative duty. Having a clerk in a solicitor’s office carry out this function saves the client money, O’Shea stressed, and the additional cost for the client concerned him.

“The Institute believes the clients are rightly aggrieved by the delay, inconvenience and extra cost they face as a result of this industrial dispute,” he said.

Attorney General Rob Hulls was not available to speak to Lawyers Weekly about his reaction to the letter, however his spokesperson asserted that “both parties are working towards a resolution of the enterprise bargaining agreement”. Pressed as to where the Attorney General stood on the matter, he said he believed that “any bans are unnecessary, but there is still good will on both sides with room to reach a resolution.”

This currently contradicts the Community and Public Sector Union’s viewpoint. Kennelly argued that for the 25,000 State government employees for whom the Union was lobbying, there was a strong need for pay rises. He pointed out that Victorian pay was currently 15 to 25 per cent less than in NSW for equivalent positions.

Considering the Union view is that the government’s current fixed position on a pay offer is “lousy”, and that members have rejected and continue to reject this offer, the industrial action looks set to continue for some time.

Kennelly explained that the Union’s previous agreement with the Government expired on 1 November last year. Despite logging their claims with the Government in September, the Union is “nowhere near” reaching an agreement for new wages and conditions. “We tried to move to a new agreement without any angst, but their position is lousy so we are currently in a bargaining position,” Kennelly said.

However, Law Institute of Victoria CEO John Cain argued that all disputes eventually get resolved, and if they can’t come to an agreement through negotiation, the matter should be quickly determined by the Industrial Relations Commission.