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Why lawyers are so expensive

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Most complaints about lawyers concern how high their legal fees are. The professional fees charged by lawyers are notorious. When many clients earn an average of $20-40 per hour, it can seem unfair that your lawyers charge you hundreds of dollars per hour. However, as this article will demonstrate, there are reasons why legal fees are so high.

Operating costs

The main reason legal fees are so high is because it costs a lot of money to lawfully run and operate a law firm. Law firms incur all of the costs normally associated with operating an office (rent, wages, photocopy leases, furniture, power, stationary, paper, ink, tax etc). Inner city law firms pay massive amounts of rent and of course this cost gets passed onto you. Additionally, there are extra costs that law firms have to pay, mainly because the legal profession is so highly regulated.

In addition to normal business costs, lawyers also incur the following costs:

Professional indemnity insurance – this is liability insurance that all law practices are required to have. The costs of this depends on the size of the practice, but it is invariably expensive. This insurance is ultimately to the clients’ benefit, as it ensures that in cases where lawyers make mistakes, clients can be compensated for this.

Practicing certificate fees – lawyers also must pay thousands of dollars every year to the Law Society in order to renew their practicing certificates. The cost of a practicing certificate depends on the type of certificate which is granted. Included in the cost of a practicing certificate is a fidelity fund contribution fee of several hundred dollars in order to reimburse clients who are defrauded of money by a small number of unscrupulous members of the profession.

Continuing Professional Development – every year, lawyers are required to complete 10 points CPD as part of their continuing legal education. This typically costs thousands of dollars per practitioner as the seminars/courses that must be attended or undertaken are rather dear. Lawyers can be severely disciplined for not complying with the above requirements. Because a solicitor’s time is worth a lot of money, the monies spent on CPD are arguably small compared to the time expended on CPD which could be used on chargeable activities.

Trust account expenses – most firms hold at least one trust account, which is a bank account where monies which do not belong to the firm are deposited. Examples of trust monies include funds used for paying house deposits or outlays, and monies paid upfront by clients or third party payers on account of the firm’s professional fees. Firms have to pay for annual external audits of their trust accounts, which usually cost a minimum of $1,500.  Firms also have to deposit 2/3 of the lowest balance held in their general trust account of the previous year into a separate account. In addition, firms can be audited by the Queensland Law Society, with the costs of such audit being passed onto them.  And of course, banks impose monthly account keeping and other fees on solicitors’ trust accounts.  Finally, the costs of keeping and maintaining records, including trust accounting software and the time spent by members of the firm also add up.

As a result, the financial costs of practicing law are enormous. There are however other reasons why legal fees are high.

Demanding occupation

Being a lawyer is one of the most demanding occupations. Lawyers have to negotiate competing demands placed on them by their clients, the courts, their employers, disciplinary bodies and their families. Some clients are difficult or have unrealistic expectations, and this ensures that they walk away unhappy with their lawyer, even when their lawyer has done an OK job.

The law is a competitive, adversarial and aggressive environment. Lawyers typically are required to work long hours, including sometimes on weekends. The consequences of mistakes and failures can be severe, including embarrassment, loss of reputation, being sued and even being disciplined.

As a result of these pressures, lawyers are one of the occupations whose members most prone to suffering depression.

For these reasons it is unsurprising that lawyers expect to be adequately compensated for the work they do.

Becoming a lawyer

The process of becoming a lawyer is a long and expensive one. The reality is that lawyers become qualified and eligible for practice at enormous personal and financial cost.

Lawyers have typically gone to university for many years in order to obtain a law degree and have then undertaken a diploma in legal practice in order to become a solicitor, or undergone training and mentoring to become a barrister. Before being able to practice law, they must be admitted to the legal profession. This is an expensive and time-consuming process which involves paying a large fee to the Legal Admissions Board, and filing an application and affidavit in the Supreme Court.

Even when they are admitted to the profession and commence legal practice, it takes years before a lawyer becomes sufficiently experienced and knowledgeable to practice without any supervision.

Conclusion

Put simply, lawyers are so expensive because the financial and other costs of practicing law are enormous. Many of these costs are due to the onerous regulation of the profession. The costs of legal practice inevitably must be passed onto the legal consumer, ie the client.

The good news is that clients can minimise their legal fees, as this article explains.

Bourke Street killer James Gargasoulas’ criminal history

Posted on Categories Criminal law, TerrorismTags , , , , 1 Comment on Bourke Street killer James Gargasoulas’ criminal history

It seems the jury that convicted Bourke Street killer James Gargasoulas, who was found guilty of 6 counts of murder and 27 counts of reckless conduct endangering life, got it right:

“Prosecutors said Gargasoulas had relevant criminal history of violent offending with nine relevant cases between 2009 and 2014 including five assault charges and four charges of reckless conduct endangering serious injury.

Court documents show he also offended at age 14 when he brought a stick of gelignite onto school property in Coober Pedy.”

Unsurprisingly, the Prosecution says Gargasoulas should be locked up indefinitely:

“In sentencing submissions presented to the Supreme Court today prosecutors claimed Gargasoulas’ crimes represented the worst examples of murder in Victoria…

“Like the unspeakable crimes committed by Martin Bryant at Port Arthur, Bourke Street, Melbourne, will never be the same again,” the submission stated.

In their submission, prosecutors said Justice Mark Weinberg should sentence Gargasoulas to life without parole based on the number of murders, the deaths of two children, his criminal history and the need for deterrence.”

The defence on the other hand is arguing that Gargasoulas’ mental illness resulted in reduced culpability:

“In submissions tendered to the court, the defence said specific deterrence has a limited role because of his condition and a prison term would weigh more on Gargasoulas than other prisoners because he is confined to his cell for 23 hours a day.

The defence also claimed Justice Weinberg should set a non-parole period and said Gargasoulas’ prior offending was more representative of an anti-social pathology fuelled by drug use than an inherently cruel, callous or barbarous.

“In relation to the nature of the offence, whilst deliberate, tragic and destructive, was borne of a deluded desire to ‘save the world’ underscored by the prisoner’s belief that he had lived many lives and if he, or others died, for that purpose, that rebirth was possible (the concept of reduplication of time),” the submission stated.”

 

Online dating rapist sentenced to 10 years

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One suspects the sentence would have been more severe if he hadn’t been suffering from muscular dystrophy, although the guilty plea no doubt also helped:

Callum Joseph Haggerty was slumped in the dock, unable to look at the judge as she delivered her verdict in the Brisbane District court this morning saying that the acts were “despicable”.
On two occasions in 2015, victims were women that he had met online, where he used misleading information to lure them in, claiming he was a wealthy business owner.
He then used physical violence on multiple occasions to overpower the women, resulting in their respective rapes.
While on bail in 2016 for the previous offences he claimed a third victim.
The court heard that Haggerty used language such as, “It could be a lot worse for you” and “suck it up b**ch,” as a means to intimidate and humiliate his victims.
Prosecutor Matthew Hynes said in his submission that the rapist had an “appalling attitude towards women” and that his remarks were “cold blooded”.

Presumably once he is released in 8-10 years time, he will no longer be able to physically attack women.

Haggarty intends to appeal his sentence, although recent precedent would suggest his prospects are poor.

Australian Information Commissioner ordered by Court to remake review decision

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The Information Commissioner’s failure to take into account relevant factors and exercise its discretion was an error of law.

Background

The Australian Information Commissioner is the head of the Office of the Australian Information Commissioner, an independent Australian Government agency established under the Australian Information Commissioner Act 2010. One of its primary functions is oversight of the operation of the Freedom of Information Act 1982.

The Australian Human Rights Commission (AHRC) is a statutory body inter alia responsible for investigating alleged infringements of Australia’s anti-discrimination legislation.

The applicants were Jackson Powell and Calum Thwaites, two former students of the Queensland University of Technology who were the subject of complaints over some Facebook posts made by Aboriginal woman Cindy Prior, which ended up being dismissed by the Federal Circuit Court. Prior to those court proceedings, the AHRC controversially handled the complaints.

The facts

On 1 August 2016 the applicants through their senior counsel Tony Morris QC made a request to the AHRC for eight categories of documents relating to complaints it had handled. The initial response from the AHRC indicated that the officer authorised to determine the request intended to refuse access to documents under s.24AA of the Freedom of Information Act 1982 (Cth) in five of the nominated categories because the work involved in processing the request in its then form would substantially and unreasonably divert the resources of the AHRC from its other operations due to the scope of the request. This led to correspondence between the applicants’ senior counsel and the AHRC with a view to narrowing the scope of the applicants’ requests.

By 30 August 2016 the AHRC had released to the applicants documents within three of the eight categories requested. but refused access to the remaining categories of documents.

The relevant categories of documents subject to the refusal decision were:

 

(2) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent [as defined in the applicants’ request] or a wayward respondent, [as defined in the applicants’ request] either:

given the respondent no opportunity to respond to a complaint (other than a decidedly unmeritorious complaint [as defined in the applicants’ request]); or

allowed to the respondent less than 21 days to respond to a complaint (other than a decidedly unmeritorious complaint).

(3) In respect of each instance mentioned in paragraph (2), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):

gave the respondent no opportunity to respond to the complaint; or

allowed to the respondent less than 21 days to respond to the complaint.

(5) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent or a wayward respondent, and in the case of a complaint other than a decidedly unmeritorious complaint:

1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or

2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or

3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or

4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so notified, less than 21 days prior to the conciliation conference.

(6) In respect of each instance mentioned in paragraph (5), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):

1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or

2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or

3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or

4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to the conciliation conference.

(8) Documents illustrating, by comparison or contrast with the complaint lodged by Ms Prior with the AHRC on or about 27 May 2014, the parameters of what is meant by the expression, “complaints … that require a response to long and detailed allegations”.

 

On 30 August 2016 the applicants applied to the Office of the Australian Information Commissioner for a review of the AHRC’s decision to refuse access to the five categories of documents the subject of the AHRC’s refusal.

On 19 October 2016 the AHRC wrote to Ms Nicolaou, the delegate handling the review for the Australian Information Commissioner expressing its view that, even if the scope was narrowed, the applicants’ request would still substantially divert the resources of the AHRC. This view was not communicated to the applicants at the time.

On both 7 December and 9 December 2016, the applicants emailed Ms Nicolaou enquiring as to the progress of the review. In response, on 13 December 2016 Ms Nicolaou apologised for the delay and confirmed the matter had been allocated to Ms Raewyn Harlock, who was described as the “case review officer”.

On 5 January 2017 Ms Harlock emailed the applicants informing them that she had prepared a “preliminary view” after reviewing the application and the AHRC’s submissions.

On 17 January 2017 Ms Harlock wrote to the applicants informing them that, before providing her “preliminary view” to them, the Information Commissioner had asked the AHRC for further information about the electronic document management system and its reporting capacity. She also informed the applicants that once the information was in her possession the Information Commissioner would consider the position and advise the applicants accordingly.

On 18 January 2017 the AHRC responded to Ms Harlock’s queries regarding its electronic document management system. The applicants were not party to the communications between the AHRC and Ms Harlock, and copies of that correspondence were not at that time provided to them.

On 20 January 2017 Ms Harlock provided her “preliminary view” to the applicants. The view expressed was in the following terms:

“I have formed the preliminary view, as case officer in this matter, that the AHRC has no documents falling within the scope of your request. I therefore intend recommending to the Information Commissioner that the decision under review should be affirmed….

My preliminary view

Accordingly, it is my preliminary view that the AHRC does not hold the documents you seek and cannot produce them using a computer or other equipment ordinarily available for retrieving or collating stored information.

Next steps

In light of the above, can you please let me know in writing whether you wish to withdraw this application for Information Commissioner review by close of business on Friday 3 February 2017. If you wish to proceed with your application for Information Commissioner review, please provide submissions in response to the above by close of business on Friday 3 February 2017. If this matter proceeds to a decision by the Information Commissioner, a recommendation in line with this preliminary view will be provided to him.”

After submissions were made to Ms Harlock, further delay on her part, and significant correspondence exchanged between the parties, on 5 June 2017 a delegate for the Information Commissioner advised the applicants and the AHRC that a decision had been made to not continue to undertake the review before the Information Commissioner.

On 13 June 2017 the applicants sought a judicial review of this decision, seeking an order that the impugned decision be set aside and the Information Commissioner be directed to hear and determine the principal review that was not continued by the decision under review.

Relevant law

Section 24AA(1) of the Freedom of Information Act 1982 (Cth) provides that:

When does a practical refusal reason exist?            

(1)  For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:                    

(a)  the work involved in processing the request:                             

(i)  in the case of an agency–would substantially and unreasonably divert the resources of the agency from its other operations.                          

Section 54W(b) of the Freedom of Information Act 1982 (Cth) provides that:

Decision to review–discretion not to review                  

The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:

(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal.

Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that:

5 Applications for review of decisions

(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law.

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d) an exercise of a discretionary power in bad faith;

(e) an exercise of a personal discretionary power at the direction or behest of another person;

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j) any other exercise of a power in a way that constitutes abuse of the power.

(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

 

Brennan CJ in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 stated that:

“when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”.

The Hardiman principle has been held to require that the “usual course” when an administrative decision is subjected to judicial review “is for a tribunal to submit to such order as the court may make” and that “other than in exceptional cases, a tribunal should not take an active role in judicial review proceedings challenging its decisions”.

Federal Circuit Court decision

The Applicants submitted that the Information Commissioner’s active participation in the proceedings was “plainly and grossly inappropriate”. However, due to the “exceptional” nature of the case (involving allegations of an abuse of power predicated on ceasing discomfiture, criticism or embarrassment on the part of the Office of the Information Commissioner), the lack of a contradictor (the AHRC refused to oppose the application for judicial review), and the Information Commissioner having a legitimate interest and being the natural contradictor, Judge Jarrett held that he should consider parts of the Information Commissioner’s submissions.

Commenting on the Information Commissioner‘s reasons for its decision, Judge Jarrett observed that:

“the reasons of the Information Commissioner’s delegate demonstrate that the only matter of any significance considered by him was the finding that he was satisfied that the interests of the administration of the FOI Act made it desirable that the review then under consideration be considered by the AAT. There appears to have been no separate consideration of the power not to continue the review then before the Information Commissioner, nor any reasons why that course was taken…

“In the uncontroversial factual circumstances just described, clear reasons for the decision to no longer continue the review could be expected. But there were none. All the statement of reasons suggests is that the requisite satisfaction was reached for the purposes of s.54W(b) and as a consequence – “Consequently” – the decision was made not to undertake the review.

Consequently, Judge Jarrett concluded that the decision was legally unreasonable and the decision maker failed to take into account relevant considerations.

However, Judge Jarrett disagreed with the applicants’ contention that the preliminary view expressed by Ms Harlock amounted to a denial of natural justice which further impugned the decision.

The result was that an order referring the matter to the decision maker for further consideration was made, in addition to orders that the Information Commissioner pays the costs of the applicants to be agreed or failing agreement to be later determined by the Court.

Conclusion

This case shows that an administrative decision of a Federal Government body to not make a decision or proceed with a review is itself a reviewable decision. The Information Commissioner’s decision to not proceed because it thought that the Administrative Appeals Tribunal (AAT) should instead determine the matter was held to be an error of law.

Perhaps above all else, this case demonstrates the flagrant and consistent incompetence of the public servants at the Office of the Information Commissioner. Not only were there many inexplicable and inexcusable delays, the decision to not proceed with the review was clearly wrong at law, and was another instance of bureaucratic ineptitude. Furthermore, like the AHRC, the Information Commissioner’s processes appear to be particularly unsound, with copies of submissions and correspondence not being shared with the applicants in a timely way and their matter being passed along the line to three separate case managers.

Injured plaintiff not ordered to pay costs of successful defendants

Posted on Categories litigation, Personal InjuryTags , , , , , Leave a comment on Injured plaintiff not ordered to pay costs of successful defendants
The facts

On 25 November 2014, the Plaintiff Glenn Garside was riding his motorcycle along the Gregory Highway travelling north from Emerald to Capella when an object fell from a truck (the truck) and struck him, causing personal injuries to him.

The truck did not stop. Its registration number was not taken and, therefore, there was doubt as to the identity of the truck.

The Plaintiff believed that the truck from which the object fell was one operated by JJ Richards & Sons Ltd (JJ Richards), so he sued the three drivers of JJ Richards and QBE, the compulsory third party insurer of JJ Richards’ vehicles. The Plaintiff also sued the Nominal Defendant because if the truck was not found to belong to JJ Richards then it was an unidentified vehicle.

QBE denied liability for the accident on the ground that the truck was not one that belonged to JJ Richards, and could therefore not be identified. The Nominal Defendant denied liability on the ground that the truck in question was owned and operated by JJ Richards.

Relevant law

Section 31 of the Motor Accident Insurance Act 1994 (Qld) provides that:

(1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles—

(d) if the motor vehicle, or insurer under its CTP insurance policy, can not be identified—the Nominal Defendant is the insurer.

(2) In any legal proceedings, it is to be presumed that a motor vehicle can not be identified if it is established by affidavit or oral evidence that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle.

Section 33(1) of the Motor Accident Insurance Act 1994 (Qld) provides that:

The Nominal Defendant’s liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.

The general rule in civil litigation is that the unsuccessful party must pay the costs of the successful party or parties, normally on the relevant court scale. This rule is contained in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) which provides that:

681 General rule about costs

(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2) Subrule (1) applies unless these rules provide otherwise.

In Sanderson v Blyth Theatre Company [1903] 2 KB 533 it was held that the court has a discretion to order the unsuccessful defendant to pay the costs of the claimant in pursuing the successful defendant and the costs of the successful defendant or defendants. Romer LJ said:

“the Court has full power over the costs of all parties of such an action; and, in my opinion, it has jurisdiction to order the plaintiff to pay the costs of the defendant against whom the action fails, and to add those costs to his own to be paid by the defendant against whom the action has succeeded, and whose conduct has necessitated the action. The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, on the ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as between him and the last-named defendant. Of course, in exercising the jurisdiction, a judge should have regard to the circumstances of the case, and be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of the successful defendant.”

In Bullock v London General Omnibus Company [1907] 1 KB 264, the plaintiff had been unable before litigation to assess which of the defendants might be liable. An order was made for the payment of the successful defendants’ costs, but with liberty to the plaintiff to include those costs in the costs of the action recoverable by the plaintiff from the unsuccessful defendant.

In Dominello v Dominello [2009] NSWCA 257, the plaintiff was injured when a vehicle in which she was travelling, and which was driven by her husband, crashed. The vehicle slipped on oil that had been dropped onto the roadway. The plaintiff sued her husband’s insurer alleging negligence against him and also sued the Nominal Defendant, being liable as the insurer of the unidentified vehicle which dropped the oil. The result after the appeal was that the plaintiff was unsuccessful against her husband but successful against the Nominal Defendant. On the question of a Bullock or Sanderson order, the Court of Appeal refused to order the Nominal Defendant to pay the costs of the successful defendant, namely the insurer of the plaintiff’s husband.

Supreme Court decision

After hearing the evidence at trial, Davis J of the Supreme Court found that the truck was not one that belonged to JJ Richards, and it could therefore not be identified. The result was that the claim against the three drivers and QBE was dismissed, but the claim was entirely successful against the Nominal Defendant, who was ordered to pay the sum of $723,761.64 in damages to the Plaintiff inclusive of interest.

After the trial, the issue of parties’ costs of the claim had to be determined. In respect of the costs of the three drivers and QBE, the Plaintiff submitted that the Court should “order otherwise” than that costs follow the event under rule 681 of the Uniform Civil Procedure Rules, and that a Bullock or Sanderson order ought to be made.

Davis J accepted this submission:

“Dominello is a very different case to the present. Here, there is only one cause of action, being negligence against the driver of the truck from which the object fell. The case was one of alternative liability of either the QBE defendants (if the truck was a JJ Richards truck) or the Nominal Defendant (if the truck could not be identified as a JJ Richards truck)…

It was obviously appropriate for Mr Garside to join all the defendants. The Nominal Defendant took a positive stance that the vehicle was one operated by JJ Richards. It could have conceded that the vehicle was unidentified.

In pleading positively as against Mr Garside that the vehicle was one driven by one of Mr Rohan, Mr Miles or Mr Robertson and in advancing that case and the wider case that the truck may have been some other JJ Richards truck, the Nominal Defendant clearly engaged with the QBE defendants on the critical issue between them. Unlike Dominello, this was a case of alternative liability. The Nominal Defendant sought to avoid liability by attempting to identify the truck as one insured by QBE. That is the conduct which satisfies the second requirement for a Bullock or Sanderson order.”

It was therefore ordered that:

  1. 1. The Nominal Defendant pay the plaintiff’s costs of the proceedings to be assessed on an indemnity basis; and
  2. 2. The Nominal Defendant pay the three drivers and QBE’s costs of the proceedings.
  3.  
Conclusion

 

This case shows that in cases where a plaintiff sues multiple defendants and is not successful against all of them, the court will consider the individual facts of the case in determining whether the successful defendants’ costs should be paid by the plaintiff or the unsuccessful defendant(s). The reasonableness of the plaintiff’s decision to sue the successful defendant(s) in all the circumstances will be the central issue in the exercise of the costs discretion in such cases. In this case, because the plaintiff’s claim against QBE and the Nominal Defendant was a case of alternative liability, and because the Nominal Defendant defended the claim on the basis that one of the drivers of JJ Richards insured by QBE was liable, the plaintiff’s decision to sue the three drivers and QBE was found to be plainly reasonable, even though it was ultimately unsuccessful.

On the other hand, the decision of the Nominal Defendant to defend the claim on the basis that the truck belonged to JJ Richards helped result in the costs of QBE being ordered against it. With the benefit of hindsight, such a decision turned out to be a mistake, although prior to trial it may have been unclear that the Court would find that the truck could not be identified. This case shows that the decision of a defendant to “point the finger” at other defendants in the proceeding can come at a cost.

 

Baden-Clay and the perils of giving evidence in murder trials

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Baden Clay

The facts

Allison Baden-Clay was reported missing by her husband Gerard Baden-Clay on the morning of 20 April 2012. Her body was found on 30 April 2012 under a bridge on a bank of Kholo Creek, some 13 kilometres from her home. Leaves found on the body were from trees of six species that grew at the Baden-Clay and his wife’s home; four of these did not grow at the site at which the body was found. Baden-Clay and his wife’s eldest child thought that her mother was wearing a “sloppy jacket” and pyjama pants at the time she was watching television. Her body was found clothed in three-quarter length pants, socks, sneakers and a singlet top which had a bra built into it. Blood matching her DNA profile was found in the rear section of her car, which had only been acquired in February 2012. Tests on Baden-Clay’s mobile phone showed that it had been placed on a charger, adjacent to the side of the bed on which he slept, at 1.48am, at a time when he claimed he was asleep.

Gerard Baden-Clay had observable injuries to his right cheek when he reported his wife missing.

Prior to Allison Baden-Clay’s disappearance, Gerard Baden-Clay had been having an affair with Ms Toni McHugh since August 2008. He and his wife were due to go to a conference on 20 April 2012 that Ms McHugh would also attend.

Baden-Clay was also in financial difficulty at the time of his wife’s death.

Baden-Clay gave evidence at his own trial in 2014, in which he denied any involvement in his wife’s disappearance, death or the disposal of her body. He said that he went to bed at about 10pm, leaving his wife, who was watching television, in the living room. He awoke just after 6am on 20 April 2012. His wife was not at home, but she often went for an early morning walk. That morning, he was responsible for getting the children ready for school and taking them there. He testified he was “under the pump a little bit”, was “rushing that morning” and that he had cut himself shaving.

Three experts gave evidence that there were two categories of injuries to the Baden-Clay’s right cheek. Their evidence was that it was most likely that fingernails caused one set of scratches and it was implausible that those scratches had been caused by a shaving razor. A second set of marks appeared to be different. They were fresher, and were consistent with having been caused by a razor “particularly if moved from side to side as it was drawn from front to back or back to front across the face.”

Gerard Baden-Clay was convicted of his wife’s murder by the jury. He appealed his conviction pursuant to s 668E(1) of the Criminal Code 1899 (Qld) on the ground that the verdict was unreasonable, and two grounds concerning the adequacy of the trial judge’s summing up to the jury.

Relevant law

Section of 302 the Criminal Code (Qld) provides that:

“if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm… is guilty of “murder”.”

Section 668E(1) of the Criminal Code (Qld), which concerns appeals in ordinary cases, provides that:

“The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

In Barca v The Queen [1975] HCA 42, Gibbs, Stephen and Mason JJ said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen.”

In Weissensteiner v The Queen [1993] HCA 65, it was said that:

“in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”

In R v White [1998] 2 SCR 72, in the Supreme Court of Canada, Major J said that:

“As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.”

Court of Appeal decision

The QLD Court of Appeal allowed the appeal. It held that “there was no evidence of motive in the sense of a reason to kill”, and therefore it was not open for the jury to find that Baden-Clay had intended to kill or cause grievous bodily harm to his wife.

The Court of Appeal held that the evidence at trial was not able to exclude a reasonable hypothesis that:

“there was a physical confrontation between [Baden-Clay] and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict.”

Remarking on Baden-Clay’s facial injuries, the Court of Appeal opined that:

“There is nothing about the facial scratches to indicate the circumstances in which they were inflicted; whether they occurred in the course of a heated and perhaps physical argument or in resisting a murderous attack.”

The Court of Appeal also said that:

“The jury could properly have rejected every word [Baden-Clay] said as a lie. But that would, with the exception of his explanation of the scratches on his face, have done nothing to advance the Crown case. Conclusions that he had lied in that regard and that he had taken steps to dispose of his wife’s body were properly to be taken into account, as evidence of a consciousness of guilt, in the context of all the evidence in the case. But the lies, or the lies taken in combination with the disposal of the body, would not enable the jury to draw an inference of intent to kill or do grievous bodily harm if there were, after consideration of all the evidence, equally open a possibility that all of that conduct was engaged in through a consciousness of a lesser offence; in this case, manslaughter.”

The two grounds concerning the adequacy of the trial judge’s summing up to the jury were rejected.

The result in the Court of Appeal was that the conviction of murder was set aside, and a conviction for manslaughter was instead imposed.

High Court decision

The Crown appealed to the High Court.

In the High Court, the Crown argued that because no hypothesis of unintentional death caused by Baden-Clay was raised by the defence at trial and there was no evidence to support such a hypothesis, it was not a hypothesis which could form the basis of a reasonable doubt in the jury’s minds. The Crown also argued that the evidence of Baden-Clay’s ongoing relationship with McHugh, his wife’s “venting and grilling” concerning that relationship and the imminent meeting of McHugh and his wife at the conference on the day after her disappearance could fairly lead to the jury inferring an intent to kill. Baden-Clay’s post-offence lies and deceptions were also said to support such a conclusion.

Baden-Clay submitted that as the case for murder depended entirely upon circumstantial evidence and the onus of proof of murderous intent was always upon the Crown, the jury could not return a verdict of guilty. He argued that a hypothesis consistent with innocence of murder was open on the evidence. Baden-Clay’s post-offence lies and deceptions were submitted to be neutral on the question of whether he had intended to cause his wife’s death.

The High Court noted that Baden-Clay’s own evidence at trial was that he was not present and had no involvement in his wife’s death, and held that that evidence had the following effect:

“The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent’s wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.

The Court of Appeal’s conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her. There were “no positive proved facts from which the inference” drawn by the Court of Appeal could be made. There was no evidence at trial of any injury to the wife’s body that might have killed her… Not only were there no fractures to the head, which might have suggested the wife had fallen and hit her head on a hard surface (as in the example given by the Court of Appeal), there were no other fractures on the body.”

The significance of Baden-Clay’s own evidence at trial was further explained by the High Court as follows:

“To say that the respondent’s evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent’s innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.

The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent’s evidence could be disregarded as if it had not been given at all.”

The High Court also observed that a further problem with the Court of Appeal’s approach was that at trial the case was conducted on the basis that Baden-Clay was either guilty or murder or had no part to play in his wife’s death, and neither the Crown nor the defence had ever suggested that Baden-Clay may be guilty of manslaughter rather than murder. Indeed, his Counsel admitted this approach had been adopted by the defence as a “considered tactical position”.

Furthermore, the High Court held that it was open for the jury on the evidence to find beyond reasonable doubt that Baden-Clay had intent to kill or cause grievous bodily harm when he killed his wife. The jury were entitled to conclude “that it tested credulity too far to suggest that his evident desire to be rid of his wife was fortuitously fulfilled by her unintended death”.

Citing the above comment of Major J in R v White with approval, the High Court held that:

“[Baden-Clay’s] false denials to police about his ongoing affair, his suggestion to Ms McHugh that she should “lie low”, and his enquiry of her as to whether she had revealed the affair to the police were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair with Ms McHugh. This anxiety could reasonably be seen as indicative that, in his mind, the affair and the killing were inter-related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing…

It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife’s body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.”

Finally, the jury was also entitled to consider and rely on “the absence of any signs that a weapon was used to cause the death”, combined with “the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm” in support of the necessary element of intent.

The result was Baden-Clay’s murder conviction was reinstated.

Conclusion

The High Court found that the Court of Appeal erred because it held that there was sufficient evidence of intent, and that due to a lack of evidence to support the hypothesis that Baden-Clay has accidentally killed his wife such a hypothesis was mere conjecture. As a result, the Court of Appeal’s decision was set aside and the murder conviction was re-instated.

Significantly, Baden-Clay’s own evidence at trial was held by the Court to support a finding that he did intend to kill his wife, even though that very evidence was obviously rejected by the jury. According to the High Court, the jury were entitled to conclude that Baden-Clay’s false testimony that he had no part whatsoever in his wife’s death would not have been given if he had not intended to kill her. In other words, Baden-Clay would have been expected to admit his role rather than give evidence denying it he had accidentally killed his wife.

The result is, as Baden-Clay’s lawyer Peter Shields has pointed out, many people accused of murder now are strongly advised to not give evidence at their own trials, because “if an accused doesn’t give evidence then they’re not subject to that forensic criticism.” In other words, the false testimony provided by a person accused of murder can according to the High Court be legitimately used by jurors to help conclude that they did intend to kill, and therefore that they are guilty of murder rather than manslaughter.

Conversely, if an accused person does decide to give evidence at their own murder trial, they should ensure that their evidence is truthful and (if possible) does not provide a jury with a belief that their evidence consists of self-serving lies. According to the High Court, Baden-Clay’s decision to give evidence at his own trial denying any involvement whatsoever in his wife’s death could be used by the jury to conclude that such an attempt to conceal his involvement inferred murder, and that such false evidence would not have been provided if her death was an accident on his part. The effect of this decision is that those accused of murder are in effect encouraged to ‘come clean’ and admit their involvement (if any) if they wish to be acquitted of murder.

Finally, the High Court’s decision confirms that evidence of intent can be proven beyond reasonable doubt even if it is based entirely on circumstantial evidence. In this case, Baden-Clay’s stated intention to be rid of his wife, the lack of evidence suggesting accidental death and Baden-Clay’s post-offence conduct provided a sufficient basis for the jury to conclude that Gerard Baden-Clay had intentionally killed his wife.

Royal Commission into lawyer informants in Victoria

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jail

This case reflects very badly on both the Victorian police and the lawyer who turned police informant on her own clients:

“Victorian Premier Daniel Andrews has announced a royal commission into the recruitment and management of police informants, following revelations Victoria Police used a defence lawyer as a registered informant at the height of Melbourne’s gangland war.

The announcement comes after legal suppressions were lifted on a High Court decision which described Victoria police’s use of the lawyer as an informant as “reprehensible conduct” which corrupted potentially dozens of high profile convictions of central gangland players.

“I am left in no doubt that a royal commission is the right thing to do,” Mr Andrews said…

The High Court judgment raised serious issues relating to the “management of informants, or shall I say the mismanagement of informants”, as well as potential impacts upon the safety or the integrity of criminal convictions, he said.

The $7.5 million inquiry will examine how many cases were directly impacted; what — if any — changes need to be made in the management of informants, and will make recommendations and provide advice on a process for dealing with those affected, Mr Andrews said…

Earlier, the High Court savaged a decision by Victoria Police to use the lawyer as a registered informant, describing it as “reprehensible conduct’’ which corrupted potentially dozens of high profile convictions of central players in Melbourne’s gangland war.

In an excoriating judgment, the High Court found the lawyer committed “fundamental and appalling’’ breaches of professional obligations to clients, and the court and Victoria Police command was sanctioned “atrocious’’ breaches by police their sworn duty to act faithfully according to the law.

The Commonwealth Director of Public Prosecutions has written to some of Australia’s most notorious criminals — including gangland drug baron Tony Mokbel — informing them their convictions and lengthy prison sentences are based on evidence provided by their defence lawyer when the lawyer was a police informant.

The extraordinary revelation follows a protracted and highly secretive legal saga played out within the Victorian Supreme Court, Court of Appeal and High Court of Australia.

It has plunged Victoria Police into crisis, with the legitimacy of potentially hundreds of criminal convictions now in doubt.”

What a mess.

The High Court was understandably extremely unimpressed:

“[[the lawyer]’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [[the lawyer]’s obligations as counsel to her clients and of [[the lawyer]’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [[the lawyer] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving [[the lawyer]’s anonymity must be subordinated to the integrity of the criminal justice system.” 

It seems clear that the barrister will have to enter into witness protection with her children as a result of her reckless and foolish decision to betray some very dangerous clients.

Mark Latham to not lead evidence in defamation trial

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Former Labor leader Mark Latham will file no evidence in his defence of a defamation claim by former Greens candidate and political journalist Osman Faruqi.

Mark Latham

The Facts

Osman Faruqi, the son of Greens senator Mehreen Faruqi, is suing Mark Latham over a video.

Faruqi had earlier shared on his Twitter, speaking to Yassmin Abdel-Magied:

“The white people are getting f..ked Yas, it’s happening.”

Latham in August, 2017 said of Mr Faruqi in his Outsiders video program:

“These people are fermenting (sic) hatred of white people,” he said, according to a transcript of the show supplied to the Federal Court. “As such, they are effectively encouraging terrorists in this political environment to do their worst.”

The video was viewed more than 30,000 times, according to Mr Faruqi.

Federal Court case

Faruqi has argued Mr Latham’s comments made him out to be someone who “knowingly assists terrorist fanatics who want to kill innocent people” and “condones the murder of innocent people”.

Latham has elected not to file any evidence in chief in defence of Faruqi’s claim against him.

This morning, Justice Wigney set the matter down for a mediation, as well as a 2 day trial on 11-12 April 2019 if the matter is not resolved at mediation.

Bourke Street killer James Gargasoulas found guilty

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A Victorian Supreme Court jury has found Bourke Street driver James Gargasoulas guilty of murder.  

Gargasoulas

The facts

On 20 January 2017 James Gargasoulas accelerated a car he was driving down a footpath in Bourke Street Melbourne, deliberately targeting pedestrians. He killed 6 people and injured many others during his rampage.

Gargasoulas was suffering from paranoid schizophrenia and drug induced psychosis at the time of the offences.

Relevant law

Section 3 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:

“offence” includes conduct that would, but for the perpetrator’s mental impairment or unfitness to be tried, have constituted an offence.

Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

Defence of mental impairment

    (1)     The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—

        (a)     he or she did not know the nature and quality of the conduct; or

        (b)     he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

    (2)     If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

Victorian Supreme Court trial

At the trial, the jury listened three days of evidence and watched harrowing CCTV footage of the rampage.

Gargasoulas gave evidence about his state of mind at the time of the offences:

“I had a premonition and I followed my instinct to do what I did… I wasn’t intending to kill anyone as I was driving to the city.”

Gargasoulas apologised for his actions but said saying sorry or a lengthy sentence would not “fix what I have done”.

His barrister Dr Theo Alexander started his three minute closing submission with a quote from Hamlet:

“Our wills and fates do so contrary run

That our devices still are overthrown

Our thoughts are ours

their ends none of our own.”

In her closing, Director of Public Prosecutions Kerri Judd QC said it was a clear case of criminal liability:

“There’s no issue of identity, the conduct itself is captured on the CCTV. The CCTV really in this case says it all.”

The jury were sent away this morning at 11.43am to deliberate.

Jury’s decision

In less than an hour, the jury found Gargasoulas guilty of 6 counts of murder and 27 counts of reckless conduct endangering life.

Gargasoulas displayed no emotion as the verdicts were announced while family members of the victims who were in the court wiped their eyes. Later, Gargasoulas appeared to be twitching his leg and rocking slightly in his seat.

Conclusion

The jury’s verdict should not have come as a surprise given there was no dispute that Gargasoulas was the driver of the car and had intended to kill or injure, and a jury had earlier found that he was fit to stand trial.

There is no doubt that Gargasoulas’ mental illness was a cause or contributing factor to the crimes he perpetrated on 20 January 2017. This case shows that even when someone is suffering from a mental illness and/or a drug induced psychosis, they ordinarily still are held criminally responsible for their actions. The legal question for a jury or judge is whether they knew what they were actually doing, or whether they knew that what they were doing was wrong. The jury’s answer to both questions was in the affirmative.

Alleged Bourke Street killer to stand trial

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A jury has decided that accused Bourke Street driver James Gargasoulas should stand trial.

Gargasoulas

Relevant law

Section 6 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

When is a person unfit to stand trial?

    (1)     A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be—

        (a)     unable to understand the nature of the charge; or

        (b)     unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

        (c)     unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

        (d)     unable to follow the course of the trial; or

        (e)     unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

        (f)     unable to give instructions to his or her legal practitioner.

    (2)     A person is not unfit to stand trial only because he or she is suffering from memory loss.

Jury’s decision

Two psychiatrists and a psychologist gave evidence at a Victorian Supreme Court hearing to determine Gargasoulas’ current mental state and his fitness to stand trial.

All three experts agreed that Gargasoulas was suffering from paranoid schizophrenia and delusions. Forensic psychiatrists Andrew Carroll and Lester Walton opined that Gargasoulas could not enter a plea, give instructions to his lawyers or understand the substantial effect of the evidence. However, Michael Daffern, a psychologist was of the view that Gargasoulas was fit.

The jury determined that Gargasoulas was fit for trial and should face six counts of murder and 28 counts of attempted murder.

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