It is common for workers in the mining industry to work long hours during long shifts, and to perform many such shifts in a short period of time. Exhaustion is therefore a real safety risk.
In this case, the Plaintiff Harold Kerle had been employed as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland and was severely injured after work in a one vehicle accident on his way home.
This case shows that the duty of care owed by employers and others is not always confined to the work hours or the place of work.
Harold Kerle had completed four consecutive 12 hours shifts at the Norwich Park Mine. He made the fateful decision to commence his journey home at about 6.30am on the morning of 30 October 2008, moments after he had finished his final shift. He lived in Monto, a five hour 430 kilometre drive away.
Shortly before 10am, Kerle crashed his car into a concrete wall after veering onto the right hand side of the road and colliding at high speed on an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. Kerle sustained significant injuries, including a brain injury and fractures of his ankle, nose and skull. Kerle had no memory of the accident or the events leading up to it.
Alleging the accident was caused by fatigue, Kerle sued his employer Axial HR Pty Ltd (“Axial”), his host employer, HMP Constructions Pty Ltd (“HMP”) and the operator of the Norwich Park Mine, BM Alliance Coal Operations Pty Ltd (“BMA”).
Under the law of negligence, an employer owes a duty of care to take reasonable precautions for the safety of its employees. This is a non-delegable duty.
In McLean v Tedman  HCA 60, it was said by a majority of the High Court that:
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming: The Law of Torts (6th ed, 1983) pp 480–1). And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”
In order for a Plaintiff to succeed in negligence, it must be established that the duty of care was breached, and that the breach of duty caused the Plaintiff to suffer loss. The Plaintiff bears the onus of proof of establishing these matters.
As Dixon CJ said in Jones v Dunkel (1959) 101 CLR 298:
“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”. But “they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture.”
A partial defence to the tort of negligence is contributory negligence, which results in an apportionment of liability between the Plaintiff and the Defendants. Such a defence in effect reduces the amount that the Defendants must pay the Plaintiff.
Additional duties for mine operators, contractors and employers are found in the Coal Mining Safety and Health Act 1999 (“the Act”) and its Regulations. Section 42 of the Regulations provided that:
A contractor at a coal mine has an obligation to ensure, to the extent that they relate to the work undertaken by the contractor, that provisions of the Act and any applicable safety and health management system are complied with.
Justice McMeekin of the Queensland Supreme Court was required to decide whether the mine operator BM Alliance Coal Operations (BMA) owed Kerle a duty of care, whether each of the Defendants had breached their duty of care, and whether any such breach had caused the accident.
Other questions for determination included whether Kerle was contributorily negligent, and what apportionment of liability should be made between the defendants.
BMA denied that it owed Kerle a duty of care as it had no contractual relationship with him, and it had a services agreement (“the services agreement”) with the host employer HMP, which required HMP to provide services to BMA and discharge any duties owed to workers. The services agreement required HMP to put measures in place to guard against safety risks.
Mc Meekin J held that BMA did owe a duty of care as it controlled HMP through its contract and it also required workers at the mine site to work in accordance with the particular system of work that created the risk.
McMeekin J held that all three defendants had failed to discharge their respective duties of care for the following reasons.
Firstly, the risks arising from fatigue were reasonable foreseeable, partly because BMA itself had in 2006 published a booklet entitled “Managing Shiftwork and Fatigue – A shared responsibility” containing various facts and statistics about the risks caused by fatigue. McMeekin J held that such information would also have been available to the other two defendants.
Second, in respect of whether there were reasonably practicable means of obviating such risks, McMeekin J held that:
“There is no difficulty that I can perceive with imposing a requirement that workers stay – simply have as part of the contract of employment or hire a requirement that their pay includes a worker travelling by bus back to the camp site, and staying at the camp site for four hours before being at liberty to leave. As to a worker in fact resting – all that those in the defendants’ position can ever do is educate as to the need for rest, provide facilities, and then leave it up to the worker. If there are difficulties with these propositions I would expect evidence to be led proving the point… It is here that I find the lack of evidence from the defendants inexplicable. If there were reasons why the proposals advanced were not practicable then I would expect evidence from the defendants demonstrating the point.”
Additional reasonably practicable means of obviating fatigue risks accepted by McMeekin J included having in place proper limits on the length of shifts, the provision of a bus service from the mine site, providing a place for Mr Kerle to rest after the shift and provide an adequate program of education for workers about fatigue and its risks. None of these means were available to Kerle on the day of the accident.
For these reasons, all three defendants had breached their duties of care to Kerle.
McMeekin J held that in spite of Kerle’s inability to recall how the accident occurred, it could be inferred that it was caused by fatigue for the following reasons:
1. Given among other things the length of the shifts worked and the expert evidence given on fatigue, Kerle was fatigued at the time of the accident.
2. There was no evident reason for Kerle’s car to be driving on the wrong side of the road in the moments leading up to the collision.
3. No dead animals, skid marks or the like consistent with avoiding an obstacle, heavy braking or hard swerving were found.
4. Kerle was an experienced driver who was familiar with the roads he was travelling on and would have likely been able to successfully manage any dead carcasses on the road (therefore this was an unlikely cause of the accident).
5. Other potential causes such as speeding were inherently unlikely.
6. The accident occurred at a slight bend in the road, which was entirely consistent with a fatigued driver failing to take the bend safely.
For these reasons, causation was established.
With liability having been established against the three defendants, the question arose as to whether Kerle himself was partly responsible for the accident. The Defendants submitted among other things that Kerle had been contributorily negligent for failing to follow instructions and training, embarking on the journey knowing he had enjoyed no rest for a long time, failing to stop and refresh himself, failing to take adequate rest breaks and courting obvious risks.
McMeekin J held that Kerle had not been contributorily negligent for the following reasons.
1. A study which showed that 81% of mine workers drove alone in their cars after work.
2. Due to the expert evidence of Professor Rogers concerning the inability of people who are fatigued realising that they are impaired, it could not be found that Kerle knew at the time that he was fatigued.
3. Kerle’s experience that he had been able to drive for such long periods before.
McMeekin J accepted BMA’s argument that HMP could not seek contribution from BMA as a result of Clause 27 of the services agreement. McMeekin J apportioned liability between them as only 10% for BMA and 90% to HMP.
McMeekin J rejected the employer Axial’s claim that HMP was the employer pro hac vice (“for or on this occasion only”) of Kerle. Between HMP and Axial, McMeekin J apportioned liability 60/40 against HMP.
This case was a huge win for Kerle, as he had sustained significant injuries, and damages had been agreed at a gross amount of $1,250,000.
This case shows that employers don’t just have to look out for the safety of their workers during the course of their employment. In this case, the Plaintiff had finished work, was going home and was no longer under the direction or control of any of the defendants. Because the fatigue had been primarily caused at work, the employer, the host employer and the mine operator were all held to be liable for the accident.
This case also demonstrates that the duty of care owed by employers requires them to be proactive. In this case, there was a requirement to guard against the risks of fatigue at the completion of a worker’s roster, and the Defendants failed to do enough to mitigate such risks.
Limitation periods exist in the law in order to require litigants to commence proceedings within a reasonable time period, and to protect defendants against the prejudice that can arise from claims being brought too late.
Serial litigant Edward ‘Ted’ Amos, has been a prolific litigant in Queensland Courts, litigating numerous disputes over many years (see for instance the history of the litigation in Amos v Wiltshire). Recently, Amos had a rare win in the Queensland Court of Appeal.
This appeal concerned whether the claim brought by the Brisbane City Council (BCC) for unpaid rates with interest was partly statute barred because the claim had been brought too late.
A majority of the Court of Appeal held that the part of the claim concerning rates notices that were older than six years were out of time. Amos also successfully argued that some of the interest claimed by BCC was also statute barred.
Amos was the owner of eight properties in Brisbane for which he had not paid rates for many years.
The BCC commenced proceedings in the Supreme Court on 24 June 2009 for the recovery, with interest, of overdue and unpaid rates arising from rates notices issued in the period 30 April 1999 to 9 January 2012.
On about 20 April 2015 Amos sold a property situated at Sandgate Road.
The claim, including interest, was for over $494,000.
Section 10(1) of the Limitation of Actions Act 1974 (Qld) provides that:
“(1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—
(a) subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;
(b) an action to enforce a recognisance;
(c) an action to enforce an award, where the agreement to arbitrate is not by an instrument under seal;
(d) an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.”
Section 26 inter alia provides as follows:
“(1) An action shall not be brought to recover a principal sum of money secured by a mortgage or other charge on property whether real or personal nor to recover proceeds of the sale of land after the expiration of 12 years from the date on which the right to receive the money accrued.
(2) A foreclosure action in respect of mortgaged personal property shall not be brought after the expiration of 12 years from the date on which the right to foreclose accrued, but if after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property that was in the mortgagee’s possession shall, for the purposes of this subsection, be deemed not to have accrued until the date on which the mortgagee’s possession discontinued.
(3) The right to receive a principal sum of money secured by the mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge shall be deemed not to accrue so long as that property comprises a future interest or a life assurance policy that has not matured or been determined.
(4) The provisions of this section do not apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act with respect to an action to recover land apply to such an action.
(5) An action to recover arrears of interest payable in respect of a sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land or to recover damages in respect of such arrears shall not be brought after the expiration of 6 years from the date on which the interest became due.”
Section 97(2) the City of Brisbane Act 2010 (Qld) provides that “overdue rates and charges are a charge on the land”.
Barnes v Glenton was an English Court of Appeal decision made in respect of statute 21 Jac 1, c.16 (the Statute of Limitations of 1623) which prescribed a limitation period of six years for all actions of debt grounded upon any lending or contract without speciality. A L Smith LJ said:
“It is clear that the statute of James was passed in favour of debtors, because by it they were allowed to plead the lapse of six years as a bar to an action. Where is to be found, in the statutes of William IV. and of the Queen, that this right is taken away? I cannot find anything to that effect; and, in my opinion, the case of a simple contract debt is not affected by the later statutes. The Real Property Limitation Act, 1833, enacted that no action or suit should be brought to recover any sum of money charged upon land ‘but within twenty years’ after the right of action has accrued. That, upon the face of it, means the right to bring an action of the class enumerated in the section. Where in that section is there anything to be found as to actions for simple contract debts to which, I may point out, the statute of James is limited?”
In the same case, Collins LJ said:
“I am of the same opinion. The action is on a simple contract debt which is also charged on land, and the argument for the plaintiff is that under s. 8 of the Act of 1874 the period of limitation of that section now governs all claims, personal or against the land, where the debt is charged on land.”
Sutton v Sutton was a case which arose out of the English Real Property Limitation Act, which amended s 40 of the 1833 Act, changing the limitation period for mortgages from 20 to 12 years. The claim for beach of a deed of mortgage was brought after 12 years, and the Defence was that the claim was therefore out of time. On appeal, this argument was accepted and the argument was a 20 year limitation period applied was rejected as putting “words there which are not to be found in the section; and more than that, it gives no meaning to words which are to be found in the section”.
In Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd, McPherson J concluded that s 26 of the Limitation of Actions Act 1974 is more specific than ss10(1) and (3). McPherson J’s also said that s 26(1) where it applied was “the specific and therefore governing provision”.
Amos argued that the relevant limitation period was six years under section 10 of the Limitation of Actions Act 1974 (Qld) because the BCC’s claim was “an action to recover a sum recoverable by virtue of any enactment”. Therefore, any claims in respect of rates notices prior to 24 June 2003 (six years before the claim was brought) were statute barred.
The BCC argued that the relevant limitation period was 12 years under Section 26(1) of the Limitation of Actions Act 1974 (Qld) because s 97 of the City of Brisbane Act 2010 made the overdue rates and charges a charge on the relevant land.
Justice Bond of the Supreme Court accepted the BCC’s argument and found that none of the BCC’s claims for unpaid rates were statute barred. Justice Bond held that the wording of section 26 of the Limitation of Actions Act 1974 was sufficiently broad to include sums secured by mortgage or a charge where or not they arose of out lending transactions. As a result, the Amos was ordered to pay over $800,000 in outstanding rates.
Justice Bond further held that s 26(5) of the Limitation of Actions Act 1974 had no operation in respect of the interest on the outstanding rates payable to BCC because such interest was a charge within the meaning of section 97(2) of the City of Brisbane Act 2010 and therefore subject to the same limitation period as the rates (12 years). Therefore, BCC’s claim for interest was not statute barred either.
Fraser JA’s reasons
Drawing on McPherson J’s decision in Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd, Fraser JA of the Court of Appeal held that “the better view is that the Act does not contemplate any concurrent application of s 26(1) or s 26(5) with s 10(1)(d)”. Therefore, Justice Bond did not err in finding that s 26(1) of the Limitation of Actions Act 1974 (Qld) applied to the claim for the unpaid rates.
Fraser JA did however agree with Amos that part of the BCC’s claim for interest was statute barred as a result of s 26(5) of the Limitations of Actions Act.
Fraser JA rejected the third ground of appeal concerning the utility charges levied on a property at Sandgate Road. Fraser held that Amos had “not established any basis for overturning the primary judge’s finding of fact that [he] implicitly asked the Council to supply the relevant services”.
The majority’s judgment
On the issue of the limitation period which applied for rates, Dalton J came to the opposite conclusion. Dalton J held that “the plain language of s 97(2) creates a charge within the meaning of s 26(1) of the Limitation Act”, but that section 10 of the same Act also applied.
Dalton J observed that both Sutton v Sutton and Barnes v Glenton involved the shorter limitation period being held to apply and opined that this recognised that “the limitation periods establish prohibitions; they do not set periods within which a suit is permitted… the prohibition is in favour of the debtor; at the time the first limitation periods ends, the debtor accrues the right to plead the statutory defence”.
Dalton J further found that this was not an appropriate case to apply the maxim of Generalia specialibus non derogant (“the provisions of a general statute must yield to those of a special one”). This conclusion was based on Dalton’s view that 10(1)(d) and s 26(1) did not deal with the same subject matter, it was wrong to assert that 10(1)(d) is general whilst s 26(1) is specific, and the legislative history and case law made it inappropriate to resolve the case by way of maxim. Finally, Dalton reiterated that limitation periods don’t allow actions to be brought within certain timeframes, they are prohibitions on actions being brought outside the times in question.
As a result, Dalton J held that “some, but not all, of the respondent Council’s claims are timebarred”. Furthermore, the charge created by s 97(2) of the City of Brisbane Act 2010 could not secure the payment of interest on rates and charges.
Dalton J concurred with Fraser JA that Amos’ ground of appeal in respect of the utility charges at the Sandgate Road property must fail.
Philippides JA agreed with Dalton J. The appeal therefore had to be allowed with costs of the appeal awarded to Amos.
This decision has made it clear that in Queensland a local Council has only six years to sue in respect of outstanding rates, otherwise all or part of the claim will be statute barred as a result of section 10 of the Limitations of Actions Act.
The practical effect of this decision is that local Councils will have to commence proceedings sooner against those who are liable to pay rates but fail to do so. The BCC’s failure to sue Amos until 10 years after he stopped paying rates resulted in part of its claim being statute barred. The BCC and its other ratepayers will be substantially out of pocket as a result of this judgment and the resulting costs order against BCC.
It is a criminal offence for a Defendant in criminal proceedings to fail to appear in court unless they have a reasonable excuse to do so. A recent case which resulted in an acquittal of such a charge sheds light on the meaning of reasonable excuse for the purposes of s33 of the Bail Act 1980 (Qld).
Siegfried Etienne had been charged with common assault but failed to appear in court for a mention listed on 9 May 2017. A notice sent to Etienne’s old address after a previous adjournment had been returned unserved. Although the prosecutor that day conceded that Etienne was not aware of the court date, he still applied for a warrant for his arrest and the court granted one.
On 26 May 2017, Etienne appeared in court and answered to the charge that he without reasonable cause had failed to surrender into custody at the Southport Magistrates Court. When asked to show cause why he should not be convicted, Etienne told the Court that he had not been informed and did not know of the court date of 9 May 2017. Etienne also pointed out that at an earlier court date on 20 March 2017 he had been told by the police that they would notify him of the next court date, and he was following those instructions. The Magistrate nevertheless convicted him, holding that he was under an obligation to call the court within a week to find out the next court date.
Etienne had self-represented during the proceedings. He had no prior criminal history and was later acquitted of the charge of common assault.
Etienne appealed the conviction for failing to appear based on new evidence confirming that he had informed the police of his new address on 7 March 2017.
Section 28A(4) of the Bail Act 1980 (Qld) provides that:
A court shall not issue a warrant under the section…
(b) where the hearing was adjourned in the defendant’s absence and the defendant was not represented by a lawyer (these conditions seem to satisfied in the present case); unless it is satisfied that –
(c) the defendant cannot be found, has absconded or is likely to abscond; or
(d) reasonable notice of the time and place so determined, or as the case may be, the time to which the hearing was adjourned has been given to the defendant
Section 33 of the Bail Act 1980 (Qld) provides that:
(1) A defendant who—
(a) fails to surrender into custody in accordance with the defendant’s undertaking; and
(b) is apprehended under a warrant issued pursuant to section 28 or 28A(1)(a), (b), (c) or (e);
commits an offence against this Act.
(2) It is a defence to an offence defined in subsection (1) if the defendant satisfies the court that the defendant had reasonable cause—
(a) for failing to surrender into custody in accordance with the defendant’s undertaking; and
(b) for failing to appear before the court specified in the defendant’s undertaking and surrender into custody as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable.
On appeal to the District Court, Judge Kent QC DCJ expressed doubt that the requirements of Section 28A(4) of the Bail Act had been met because Etienne had not been present when the court date of 20 March had been adjourned.
Judge Kent QC allowed the appeal based on the new evidence that Etienne had informed the police of his new address on 7 March 2017 and also because the Magistrate’s view that weekly enquiries with the Court were necessary was “not reasonably justifiable”.
As a result, the conviction and the resulting fine were both set aside.
The matter concerned drug trafficking charges involving 3 co-defendants, including Mr Pham. Legal Aid provided the funding to private lawyers to represent the 3 co-accused at the trial. The co-defendants were all represented by the same firm of solicitors, although not by the same individual solicitors from within that firm.
At trial, one of Mr Pham’s co-defendants gave evidence that implicated Mr Pham in the drug-trafficking crime. Mr Pham did not give nor call any evidence, and relied solely on the evidence given by that co-defendant for his own defence.
Mr Pham was convicted of the drug-trafficking offence as a result of that trial. In making this appeal Mr Pham alleged that the solicitors representing the co-defendants had failed to advise him about the content of this evidence before the trial. Mr Pham further alleged that this failure allowed him to be inculpated without being afforded the opportunity to explain himself, and that as a result he did not have a fair trial.
The co-defendants including Mr Pham were tried for attempting to possess a commercial quantity of an unlawfully imported border controlled drug namely heroin. The heroin had been brought to Brisbane from Vietnam, concealed inside 2 wooden altars in a shipping container, on 28 October 2012.
The altars had been intercepted on 6 November 2012 by Customs and other Commonwealth authorities without the knowledge of the co-defendants. The interception was made after Customs detected 78 packages of white powder hidden inside the altars. The white powder was forensically analysed, and subsequently discovered to be pure heroin.
The heroin contained in each altar was covertly removed by the Federal authorities, before being replaced with an inert white powder that visually appeared to be the same as heroin. The white powder was contained in identical looking plastic packages, and the altars were also fitted with concealed surveillance and tracking devices whilst the heroin was replaced with the white powder.
The altars were then delivered to a property in Robertson on 9 November 2012 where they remained overnight before being collected and moved by the co-defendants, including Mr Pham using a hire trailer towed by a Victorian registered Nissan X-Trail. The X-Trail had been hired by one of other the co-defendants. Mr Pham was not driving the X-Trail, but was following it in another vehicle with another of the co-defendants.
The altars were taken by the co-defendants to a shed in the suburb of Munruben, where the altars were stored for the night, before being dismantled by the co-defendants the following day.
It was whilst the co-defendants were inside the shed dismantling the altars and recovering the packages that the shed was raided by the police, who apprehended the co-defendants, including Mr Pham, at the scene.
Mr Pham claimed that he did not know the packages contained heroin, and claimed that he did not intend to possess it as was alleged by the prosecution.
Mr Pham was convicted of the charge of attempted possession of a commercial quantity of unlawfully imported border controlled drugs and sentenced to 12 years imprisonment.
Mr Pham then appealed his conviction.
Grounds of Appeal
Mr Pham pursued the following grounds of appeal:
1. The verdict reached by the jury was unsafe and unsatisfactory.
2. The learned trial judge failed to direct the jury in accordance with the elements of the offence.
3. The appellant’s solicitors had an actual, or at least an apparent, conflict of duties caused by the same firm of solicitors acting for the co-defendants.
4.The learned trial judge erred in not directing the jury to consider whether the evidence established the defence provided for by sub-section 307.5(4) of the Criminal Code.
5. The appellant’s solicitors had an actual, or at least an apparent, conflict of duties caused by the same firm of solicitors acting for the co-defendants. The appellant was thereby deprived of a fair trial.
There were specific particulars cited by Mr Pham for Ground 2 to justify his argument, which are detailed and extensive, and can be summarised as follows:
2.1 The learned trial judge erred in directing the attention of the jury to two different substances when considering the elements of the offence….
2.2 … the learned trial judge erred by directing the jury to decide whether the appellant intended to have custody or control of the contents of the altars as they were on 10 November 2012.
2.3 … the learned trial judge erred by leaving the case to the jury.
2.4 In the alternative to 2.3 above, … the learned trial judge erred by failing to direct the jury that it was necessary in order to convict the appellant for the jury to be satisfied beyond reasonable doubt that the appellant intended that the contents of the altars had been unlawfully imported and amounted to a commercial quantity of a border controlled drug… and the learned trial judge erred in not directing the jury to consider whether the evidence established the defence provided for by sub-section 307.5(4) of the Criminal Code.
Mr Pham also applied to the Court for leave (permission) to adduce (provide new) relevant evidence to prove Appeal Ground 4 that the conduct of his case by his former lawyers deprived him of the chance to receive a fair trial, and that therefore his conviction was wrongfully entered against him. The application for leave to adduce the evidence was ultimately dismissed unanimously by all of the 3 judges hearing the appeal.
Commonwealth Criminal Code
Section 307.5: Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
Section 13.4: Legal burden of proof defence
Section 11.1: Attempt
Section 5.2: Intention
Australian Solicitor’s Conduct Rules
Rule 11: Conflict of duties concerning current clients
Queensland Criminal Code
Section 620: Summing up
Section 668E: Determination of appeal in ordinary cases
R v Szabo  2 Qd R 214;  QCA 194
R v Onuorah  NSWCCA 238; (2009) 76 NSWLR 1
The Court of Appeal’s Decision
The appeal against conviction by Mr Pham was dismissed by the Court of Appeal, and Mr Pham’s application for leave to adduce evidence was also dismissed.
The judgement of the Court of Appeal was written by the President of the Court of Appeal, Margaret McMurdo, with whom Morrison and Philippides JJA agreed. Morrison JA added his own additional reasons for why he agreed with the reasoning of the President to the final judgement transcript, as did Philippides JA.
With respect to the grounds alleging misdirection by the trial judge McMurdo P held that:
“… In light of the evidence in and the appellant’s conduct of the case, and the judge’s comprehensive directions to the jury as to the elements of the offence, together with her Honour’s subsequent discussion of the question trail, the appellant has not demonstrated that the judge erred in framing questions 1 and 4. The appellant has not demonstrated any miscarriage of justice arising from those questions. This ground of appeal is not made out.”
The reference here to questions 1 and 4 is a reference to a questionnaire the trial judge suggested the jury could use to assist it in considering the evidence before it for its verdict. The trial judge however did not direct the jury that this was the only suitable way in which the evidence could be considered in order for the jury to reach a final verdict…
It was not his case at trial that he did not know the border controlled drug he was attempting to possess was imported. As the appellant did not meet the evidentiary onus placed on him by s 307.5(4) as informed by s 13.4(b), the judge was correct in not directing the jury on that defence. This ground of appeal is not made out.”
With respect to Ground 1 McMurdo P held that:
“The appellant contends that the evidence at his trial was insufficient to support an inference beyond reasonable doubt that he knew or believed the altars contained a border controlled drug rather than some other illicit goods like cigarettes or tobacco….
As this Court has found, that verdict was not unreasonable or unsupported by the evidence. The jury were also entitled to reject as unreasonable the possibility that the appellant may have assisted and been prepared to keep silent because he was afraid or for some other reason, and his claim that he did not believe the altars contained unlawfully imported border controlled drugs rather than something less sinister like tobacco.
After reviewing the whole of the evidence admissible against the appellant, I am persuaded that the jury were entitled to infer beyond reasonable doubt that he attempted to possess a commercial quantity of the border controlled drug, heroin, when he assisted in moving the altars from Robertson to Munruben and when he removed the contents of the altars at Munruben. It follows that this ground of appeal is not made out.”
With respect to Ground 5:
“Mr Pham relied on the case of R v Szabo, where the court in that case used the following test to determine whether the defendant in that matter had suffered a miscarriage of justice. The test is whether ‘An ordinary fair-minded citizen in the position of the appellant, with knowledge of all relevant circumstances, would have at least a lingering suspicion that the appellant did not have the benefit of fair play’.”
McMurdo P held that:
“As I have explained, the present case differs from Szabo, where Mr Szabo deposed that, had he known of his defence counsel’s recent past sexual relationship with the prosecutor, he would have changed his barrister. By contrast, this appellant apparently gave informed, signed instructions that he did not wish to give evidence in his trial, apparently because Mr Tran was to give evidence which would be helpful to the appellant. That is what transpired.
His counsel then had the advantage of addressing the jury after the prosecutor. The appellant does not contend that any of the evidence led in his joint trial with Mr Tran, particularly that part of Mr Tran’s evidence which implicated him in the physical element of the offence, was untrue. Nor has he deposed that, had he known the details of Mr Tran’s evidence in advance, even those parts that inculpated him, he would have conducted his own trial differently.
In these circumstances, a fair-minded observer, with the knowledge that Mr Tran and the appellant were represented by different solicitors from Bosscher Lawyers instructing different barristers, would not entertain a reasonable suspicion that justice had miscarried. This ground of appeal is not made out.”
Legal Aid Queensland decided in light of the arguments raised by Mr Pham in his appeal against his conviction that its previous policy on law firms acting concurrently for 2 or more co-accused was unrealistic and dangerous.
The previous policy position was that it was permissible for a law firm to act concurrently for 2 or more co-accused so long as the law firm acted in a professional manner when handling the cases of the co-accused, and did its best to ensure that it did not compromise one co-accused’s rights whilst attempting to uphold those of another co-accused.
As a result of this Legal Aid Queensland has now implemented a strictly one accused per law firm policy for criminal matters. If a law firm wishes to act concurrently for another co-accused, the firm must apply to Legal Aid for Legal Aid’s clearance to act concurrently for 2 or more co-accused.
Legal Aid Queensland will then assess the request for clearance by seeking to accurately determine whether or not that law firm can guarantee that in acting concurrently for 2 co-accused it will not harm either co-accused’s case by acting for the rights and interests of either co-accused. If a law firm that is seeking the clearance of Legal Aid Queensland cannot satisfy Legal Aid Queensland of this, Legal Aid Queensland will not approve the request, and that law firm will have to discontinue acting for one of the co-accused. It could even potentially mean that a law firm must cease acting for all prospective co-accused if the matter has not progressed too far, or if Legal Aid Queensland instructs the law firm that it must discontinue acting.
Legal Aid Queensland has determined that the best way to ensure that a criminal accused’s rights and best interests are protected and promoted is to ensure that the accused’s legal representation is solely dedicated to their matter, and that the criminal accused is not put in a position where their rights and best interests are burdened by another co-accused’s rights and best interests also being handled by the same law firm. This policy change is intended to achieve that goal.
The matter originally concerned a claim for professional negligence by serial litigant Mr Edward Amos against a barrister he used to engage named Christopher Wiltshire.
The ‘long and winding road’ of litigation was effectively ended by the Queensland Court of Appeal this week when it dismissed an appeal against a decision by the District Court to dismiss the claim for want of prosecution.
This case demonstrates that a litigant’s motives and the way in which they conduct their litigation will be strong factors that influence whether their right to pursue their claim will be terminated by a court.
In order to understand why the District Court and the Court of Appeal ruled the way they did, it is necessary to understand the long history of the matter, briefly summarised as follows.
June 2009: Amos commences his claim against Wiltshire, alleging negligent advice which he relied on in alleging fraud in another proceeding against a costs assessor which had been subsequently dismissed with indemnity costs.
25 March 2010: Samios DCJ of the District Court finds for Amos with costs after a trial on 11 March 2010.
22 October 2010: Wiltshire has the judgment of Samios DCJ set aside with costs on appeal due to non-disclosure of relevant documents by Amos, and a retrial is ordered. Amos subsequently applies unsuccessfully for leave to the High Court to have the Court of Appeal’s decision overturned.
2 August 2012: Amos applies to the Court of Appeal seeking to have its decision of 22 October 2010 set aside based on ‘new evidence’, which leads to a trial on 8 and 9 April 2014 in the Supreme Court’s trial division for factual determinations, and two more subsequent appeals by Amos to the Court of Appeal, as well as an Application to the High Court for special leave which was refused.
28 August 2015: The Court of Appeal dismisses Amos’ applications with written reasons subsequently published finding that Amos’ “attempts to set aside the Court’s orders of October 2010 lacked any reasonable basis” and which refer to “the appalling history of the litigation in this Court”.
16 December 2016: The proceedings dismissed by McGill DCJ of the District Court with costs for want of prosecution. Amos appeals this decision.
Grounds of Appeal
There were three grounds of appeal against the decision of McGill DCJ pursued by Amos which can be summarised as follows:
Section 22 of the Civil Proceedings Act 2011 (Qld) (which applies to the District and Magistrates Courts) provides that:
“If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.”
The definition of “proceeding” in schedule 1 of the Civil Proceedings Act 2011 (Qld) provides that “proceeding” means:
“a proceeding in a court (whether or not between parties), and includes –
(a) an incidental proceeding in the course of, or in connection with, a proceeding; and
(b) an appeal or stated case.”
In Elliott v Ajax Insurance Company Limited it was held that the filing of a notice of appeal is a proceeding or act in an action in the initiating court.
In Harris v Quine, it was held that that an appeal “… was nothing more nor less than a continuation of the original suit”.
The Court’s decision
Morrison JA wrote the judgment which the other two judges (Gotterson JA and Flanagan J) agreed with.
Given that the appeal concerned the exercise of discretion and Amos’ right to pursue his claim, Morrison JA granted leave to appeal nunc pro tunc.
In respect of Ground of Appeal 1, Morrison JA held that:
On no reasonable reading of the order made on 22 October 2010, could it be suggested that the Court of Appeal was issuing some form of mandatory injunction by which the only thing the District Court could do was have a trial. On the contrary, it was simply saying that a new trial was the mechanism by which the whole of the evidence, including the evidence previously held back, could be assessed. It was, of course, up to the District Court to manage its processes with a view to conducting that trial. The order of 22 October 2010 was never intended to circumscribe what might happen in the District Court.
In my view, it is plain that the Court of Appeal intended that the District Court would be in a position to deploy any and all of its powers under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to progress the proceedings once again to a trial, so that the issues could be finally determined on a proper basis. That would include the power to bring the proceedings to a summary end, if the circumstances warranted that course. How could it be otherwise? Plainly there would be further orders for disclosure and, perhaps, production of particular documents. If that disclosure revealed, for example, that Amos’ case was bound to fail, it could not sensibly be suggested that the Court of Appeal intended that the parties would doggedly proceed to a fruitless trial. Such a course would run counter to the objects of the UCPR, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: r 5(1).
In respect of Ground of Appeal 2, Morrison JA outlined the above history of the litigation in detail including the Court of Appeal’s earlier findings that Amos’ attempts to overturn the Court of Appeal’s decision of 22 October 2010 had no reasonable basis and were generated by false and tailored evidence, as well as Gill DCJ’s finding that the appeal steps did not amount to steps taken in the District Court proceedings.
Morrison JA formed the conclusion that “All of the steps taken by [Amos] since that time, in courts other than the District Court, have been in an effort to sustain the unfairly obtained District Court judgment, rather than to progress the new trial ordered by the Court of Appeal”, and that “the lack of any reasonable basis for the steps that were taken by Amos prevents them being characterised as prosecuting the proceeding”. Therefore, none of the Applications to the Court of Appeal, nor the Applications to the High Court were deemed to be steps for the purpose of section 22 of the Civil Proceedings Act 2011.
In respect of Ground of Appeal 3, Morrison JA found that there was no merit in this ground for the following reasons:
Central to the reasoning of Morrison JA was the fact that instead of taking steps to have the retrial pursuant to the Court of Appeal’s decision on 22 October 2010, Amos instead repeatedly sought to challenge that decision. Morrison JA considered that “Amos’ pursuit of that course deserves censure” as “there was never any reasonable basis for him to challenge the orders made by the Court of Appeal on 22 October 2010”.
The moral of this case is that the conduct of a party in their litigation will be central to whether they will be allowed to pursue their case after a period of delay in legitimately progressing their matter. When exercising its discretion on whether to strike out a proceeding for want of prosecution, the court will take into account the reasonableness and motives of the parties in the decisions they have taken.
In this case, the unreasonable attempts to overturn the Court of Appeal’s decision of 22 October 2010 to set aside the judgment and order a retrial of the matter weighed strongly against the claim being allowed to continue. Rather than take steps to progress the matter towards the retrial, Amos had refused to accept the Court of Appeal’s decision of 22 October 2010 and sought repeatedly and unreasonably to contest it. After numerous applications, appeals and significant delay, the District Court and the Court of Appeal determined that it was inappropriate to allow the matter to continue. The Court of Appeal’s decision can therefore be seen as a merciful termination of drawn out and horrendously expensive litigation.
This case demonstrates that the right of a party to pursue a claim to conclusion is not necessarily absolute, but rather can be conditional on them complying with the letter and spirit of the law, court orders and the need for litigation to be conducted efficiently and reasonably. Amos lost his right to pursue his claim because he was found to have acted unreasonably in repeatedly challenging the Court of Appeal’s decision of 22 October 2010 without sufficient grounds.
Amy Louise Robinson was employed by activewear company Lorna Jane Pty Ltd between July and December 2012 as manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.
Ms Robinson claimed to have suffered a psychiatric injury from workplace bullying by Megan McCarthy (Lorna Jane’s learning and development manager) and haemorrhoids when lifting and moving heavy boxes of stock during the course of her employment.
Vicarious liability is a common law principle which imposes liability despite the employer’s not itself being at fault. The claim for psychiatric injury alleged that Lorna Jane was vicariously liable for the actions of McCarthy and also that an email from a former DFO store employee named Ms Maninnen which alleged ill-treatment of Robinson by McCarthy had put the company ‘on notice’ and that it had subsequently failed to investigate.
Both liability and quantum were in dispute although there was no dispute between the parties concerning the following:
1. liability is to be determined in accordance with the civil liability provisions contained in sections 305-305E of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) (Reprint 6A);
2. Lorna Jane owed Ms Robinson a duty to take reasonable care for her safety in the workplace; and
3. such duty included taking reasonable care to avoid psychiatric injury.
Judge Koppenol dismissed the claim, finding against the plaintiff on liability and quantum.
The claim was dismissed by Judge Koppenol as a result of the following findings:
1. That the Maninnen email did not put Lorna Jane ‘on notice’ because that email only expressed opinions and conclusions and did not provide any context which would have enabled Lorna Jane to form their own views based on the email.
2. In any event, Lorna Jane’s national sales manager Claire Perrin had taken appropriate action by reporting the email to Lorna Jane’s HR department, attempting to make contact with Maninnen about her email and meeting with Robinson shortly afterwards to see if she had any concerns about her employment.
3. Whilst there were extremely different accounts of the meeting between Robinson and Perrin, the evidence of Perrin should be accepted because Perrin was ‘an impressive and credible witness’ whilst Robinson was ‘a most unreliable witness’. Therefore, it was not found that Robinson had raised her concerns at McCarthy’s treatment at that meeting as Robinson alleged.
4. Robinson was not an honest witness for the following reasons:
a) Her evidence of her employment history, including having been club general manager at Curves Aspley since 2010 and having worked in London was contradicted by tax records and other material which revealed she earned minimal income from paid employment prior to commencing at Lorna Jane.
b) She had informed a psychiatrist named Dr Garg that “social anxiety prevents her from going out and meeting people, or having people over to her house”, and that she “avoids going to the local shops where she might run into people she knows.”, however, her Facebook account told a different story, showing to be socially active.
c) Ms Robinson also told Dr Garg in January 2017 that whenever she saw the Lorna Jane brand, she “starts shaking with anxiety … [which] leads to her getting palpitations, shortness of breath and sweating”. However, photographs shown to the court showed that she was wearing Lorna Jane clothing after her employment had ceased.
5. Robinson was not bullied by McCarthy (and hence Lorna Jane were not vicariously liable for any bulling) for the following reasons:
a) It was unlikely that McCarthy had referred to Robinson as ‘cheap’ on the first day of Robinson’s training because Robinson had said that at the time they got along well.
b) Robinson did not provide any examples of when the term ‘generator’ was used in a nasty way and there was no evidence that McCarthy had ever done so.
c) a Facebook post by McCarthy which used the term ‘generator’ did not name Robinson and McCarthy claimed (and the Court accepted) that it was not directed at anyone but was posted in frustration at her job.
d) Robinson’s evidence that McCarthy had made weekly comments about her weight was rejected because there were no other witnesses of such comments and they were not reported to Perrin, the notes Robinson said she made of the comment were never produced and a contemporaneous photograph showed that Robinson was not overweight at the time.e) Ms Robinson’s complaints about McCarthy’s alleged dismissive conduct have not been established on the balance of probabilities.
6. The risk of psychiatric injury to Ms Robinson was not reasonably foreseeable because the role of manager inherently involves some stress, employees chose their jobs with employers being entitled to assume employees are able to cope with them, there were no warnings signs of such injury’ and ‘an employer is not expected to be a mind reader’.
7. Lorna Jane were not in any event vicariously liable for McCarthy’s Facebook posts because they were personal posts on a personal page and the ‘controlling High Court decisions in this regard’ did not impose vicarious liability on such posts.
8. Robinson did not suffer any physical injury to her perianal area as there was no medical evidence that she sought treatment soon after incurring this alleged injury, the records of her medical examinations by Dr O’Connell made no such mention of this injury, and the absence of any corroborative evidence from an employee at the DFO store.
9. Due to the above credibility issues, Judge Koppenol was not satisfied that Robinson had suffered any work related mental health condition notwithstanding the fact that she had been accepted for Workcover, and therefore assessed quantum as $nil. Her complains were attributed to a combination of exaggerations and a pre-existing mixed personality disorder.
This was clearly a comprehensive win for Lorna Jane as every single issue was decided in its favour at trial.
When diligent lawyers investigate the claim thoughly and identify discrepancies between what a Claimant says and the objective evidence, this will inevitably harm a Claimant’s credibility.
This case highlights the importance of a Claimant being honest throughout their claim. Any lie or exaggeration once exposed will damage their credibility and hence their prospects of having their evidence accepted by the Court. Claimants in personal injury claims would be well advised to be scrupulously honest at very step of their claim in order to preserve their credibility.
This post discussed why legal fees tend to be so high. The good news is that as a client there are a number of ways you can reduce your legal fees, as the rest of this article will show.
Most clients only come to see a lawyer when they are in legal trouble. Unfortunately, by this stage there is often only so much your lawyer can do to help you, and usually the remaining legal options are going to cost a lot of money.
For instance, when you have an important agreement or arrangement with a person, it’s often better to obtain legal advice and have a written agreement. This will prevent disputes about the content of your agreement and make everyone clear on their rights and obligations under the agreement. This in turn significantly reduces the risk of a dispute and you later having to go to court and pay massive legal fees.
Also, if you recieve a letter of demand, you should either pay the demand or see a solicitor immediately. Not doing anything about it normally leaves the other party with little choice other than to commence proceedings, which are going to be expensive for all parties.
In a way, visits to your lawyer can be seen as similar to check-ups with your dentist. Regular check-ups with your dentist will ensure that any cavity or decay is detected early, ensuring that such problems are tackled early and preventing the need for root canal or tooth extraction. Similarly, an appointment to see your lawyer about a major transaction can help ensure that your interests are properly protected and serious legal problems later on are avoided.
Shop around/Don’t go with any inner-city law firm
Different lawyers charge different amounts for the same work. You may be quite surprised at the differences.
The best way to shop around is to look on the internet. That way you don’t feel obligated by having a lawyer see you and spend a while talking with you, or have to pay them for an initial consult when in the end you decide you would prefer another firm. By looking at a firm’s website you can ascertain where they are, what areas they practice in and get a general impression before you email them. When you email them, tell them very briefly what your matter is about in 4-6 sentences and ask them how much their fees will be. You should get a response within two business days if the firm is willing and able to take on your matter.
In terms of fee structure, the best approach is to agree on a fixed fee if that is a practicable option. Ask your solicitor to give you a fixed fee for your matter. That way, you know how much you will have to pay in advance and there are no nasty surprises later on. Also, your solicitors will not have the incentive of spending more time on your matter than necessary so that they can charge you more.
Of course, sometimes it is not possible for a fixed fee to be arranged. A typical example of when a fixed fee is unlikely to be possible is in court proceedings. Whether it’s civil litigation, family proceedings or a criminal case, it is impossible to precisely predict in advance how many court dates, how much preparation and generally how much work your solicitor will have to carry out. In such matters you may have to settle for an hourly rate, but you should still ensure that it’s competitive by getting a few different quotes.
Law firms in the CBD and other expensive areas pay enormous amounts of rent for their office spaces. Naturally, these costs are passed onto you, the consumer. In order to pay their massive overheads, inner-city firms charge very high hourly rates and most put lots of pressure in their ‘fee earners’ to generate as many ‘billable hours’ as possible every day. In such firms, the performance evaluation of their solicitors (or ‘fee earners’) is mostly based on the amount of money they generate for the firm. The focus in such firms is essentially on extracting as much money from you as possible.
Of course, there are times when it may be better to go with an inner-city law firm, such as if your claim is worth millions of dollars, or due to the complexity of your legal matter you require an accredited specialist (although there are accredited specialists in the suburbs as well!). Otherwise, it is generally advisable to see a suburban solicitor who pays far less rent. If your matter requires specialist advice or is going to court, your solicitor can always engage a barrister on your behalf to provide such services which shouldn’t come to too much.
Settle the case
Litigation is essentially a zero-sum game, as there can only be one winner, and the person who wins does so at the expense of another party. In fact, describing litigation as a zero sum game is actually unduly optimistic: both parties normally pay highly expensive legal fees, and only in exceptional cases do successful parties get costs orders which indemnify them for the massive amounts of legal fees they have paid.
In civil litigation, the normal course is that costs are awarded to the successful party on the court scale, which is usually substantially less than what your lawyers charged you. So even if you do win in court, the legal costs you recover will normally be a lot less than the amount that you paid in legal fees. Costs are usually not awarded in family matters in the federal courts or in estate matters.
On the other hand, if you lose you will have to pay your lawyer’s fees, the judgment sum and the other side’s costs. Unless you are quite wealthy, this is a triple whammy you probably can’t afford.
Furthermore, the outcome of litigation is normally uncertain, as it concerns disputes of fact or disputes over the meaning, effect or application of relevant laws. Litigation is also often unpredictable, as there are issues which often come up by surprise, and sometimes the judge just takes a particular view of the case and decides accordingly. You can never be completely sure of a good outcome, even if you have an apparently strong case.
As a result, it is generally advisable to try to settle the case before going to court. If you want to sue somebody, get your lawyer to send a letter of demand first and/or an offer to settle the civil dispute. If you receive a letter of demand, see a lawyer to get advice and then get the lawyer to draft a response. The response should be aimed at preventing the need for court proceedings, either by pointing out why you don’t owe the money demanded or making an offer to settle the dispute for once and for all. Because court proceedings are so expensive, you should try and avoid them whenever possible.
If you are a party to a court proceeding, consider the possibility of settling your case. There are three major advantages to this option:
1) The uncertainty is eliminated: the outcome you have both agreed upon you will almost certainly get, thereby removing the risk of financial disaster if you lose;
2) You can save on legal fees: as the matter will not have to proceed to final hearing; and
3) The matter is over far more quickly: so that you avoid unnecessary stress and can move on with your life.
A negotiated outcome could be a win for you and a win for your opponent, but in order for it to work you would have to put an offer that they may accept. Remember that the other party to the case will only accept if they see the outcome as beneficial for them. You should try and see things from the other party’s point of view and ask yourself what you would accept if you were in their shoes. It would be sensible to offer somewhat less than what you would get if you won in court to take into account the risk and expense of a trial.
Spend less time talking to/ emailing your lawyer
Many clients like to spend lots of time chatting to their lawyer on the phone. Some clients do not realise that lawyers are performing work by discussing your case with you or listening to you, and are perfectly entitled to charge for this.
Other clients like to send numerous long and/or repetitive emails to their lawyers. Of course, your lawyer is also entitled to charge for reading each of these emails.
A lawyer’s most valuable asset is his or her time. Minutes spent by a lawyer talking to you or reading your long emails are minutes that can be spent working on another client’s matter. By taking up a lawyer’s time discussing your case or sending many unnecessary emails, you are using up his or most valuable resource. If you want to save on your legal bills you should limit the time spent chatting with or emailing your lawyer. Wherever possible, make it short and sweet!
If you need to vent, talking to your partner or a friend is a much cheaper option. Remember that your lawyer can only help you with the legal side of your problem.
Do what your solicitors tells you the first time
Many clients fail to do what their solicitor asks them to do the first time. This leads to the solicitor having to chase up the client by writing letters and emails as well as calling the client. Sometimes the solicitor will also recieve correspondence and calls from third parties in relation to the delay occasioned by the client. All of this leads to additional and unnecessary costs being incurred on the client’s file.
Don’t change lawyers
Every time you change lawyers, your new lawyers will have to spend time reading the file in order to become familiar with its contents and the issues, and to know what steps need to be taken. Naturally, you will be charged for this time.
As a result, it is generally adviseable to stick with the same lawyers from start to finish.
Don’t change your instructions unnecessarily
Your instructions are what you as a client tell your solicitor to do for you. Your lawyer has to carry out your instructions unless you ask him or her to do something which is illegal or unethical.
Your instructions will sometimes have to change as the case evolves. Changing your instructions can often be desirable, and is sometimes necessary (for example, if an event has made what you are seeking impossible to obtain). However, changing instructions can result in more legal work having to be undertaken, and therefore more fees. As a result, you should carefully consider your options before you give your lawyer instructions and not change those instructions without a very good reason. Changing instructions without a good reason can result in your legal bills being needlessly higher than they would otherwise be.
As this article demonstrates, there are a number of ways that legal consumers can save on legal bills. The important principle to remember is that a lawyer’s most valuable resource is his or her time, and the more time you consume the more you will be charged. Essentially, saving your solicitor time saves you money.
There are many aspects to the solicitor-barrister relationship. In some ways the relationship is symbiotic: solicitors need barristers when a case requires specialist advice or is going to trial, and barristers need solicitors to refer work to them. It is certainly in the interests of solicitors to have good relations with at least some barristers and vice versa. However, many (but not all) barristers consider themselves to be the more senior arm of the profession, to the chagrin of solicitors.
When a barrister is instructed by the solicitor, the two act as a team in preparing for and presenting the client’s case. The solicitor’s role is to obtain the client’s instructions, sort the facts in a digestible format for the barrister and to gather the relevant information and evidence in preparation for hearing. The barrister on the other hand provides advice and performs the advocacy work in court. When the solicitor and barrister work well together, that is to the benefit of the client, whose chances of a favourable outcome are increased.
However, two Discipline Applications brought against solicitors in the Queensland Civil and Administrative Tribunal (QCAT) in 2013 show that disputes can arise between solicitors and barristers that can have serious consequences for the legal practitioner found to have acted unethically.
On 16 October 2013 Milton solicitor Ros Janes was found guilty of professional misconduct for misleading the District Court. The District Court proceeding was a body corporate matter, and Janes instructed a barrister named Shannon Moody before terminating her retainer. Janes then filed an affidavit and appeared before the District Court, blaming Moody for the failure to comply with the Court’s directions to file an Outline of Argument. The Court referred the matter to the Queensland Bar Association so that Moody could respond, leading to the Legal Services Commissioner commencing disciplinary proceedings against Ms Janes.
The QCAT hearing largely turned on the communications between Ms Janes and Ms Moody in the lead up to Janes’ appearance in the District Court, and involved extensive cross-examination of both women, with the tribunal finding Moody to be the more impressive witness. Other factors that lead to the court preferring the evidence of Moody were that:
– Janes’ typed notes of conversations with Moody in many respects did not accurately reflect an allegedly contemporaneous handwritten note she made of a conversation with Moody
– Janes’ admission that Moody had raised an extension of time with her on four occasions
– Janes’ claim that at the time she did not know the submissions prepared by Moody were not an Outline of Argument as directed by the Court
– an untruth in her affidavit concerning when Moody advised her the Outline could be prepared by
– Janes’ denial that she had requested Moody to withhold preparation of the outline when she had requested an extension from the Registry for filing of the Outline on the ground that the parties could resolve the proceeding
– her claim that she had asked Moody to prepare the Outline urgently but then had not contacted Moody for another two weeks
– Janes effectively conceding that paragraphs 28 and 29 of her affidavit were incorrect.
Janes was publicly reprimanded and ordered to pay a fine of $10,000 and costs fixed at $2,000.
Meanwhile, Gold Coast solicitor Karen King was found guilty of professional misconduct in November 2013 after the Tribunal found that she breached an undertaking she made in 2006 to a barrister to pay his outstanding fees in full within an agreed time. The barrister was only ever paid $5,000 of the approximately $29,000 owed to him. Ms King denied the undertaking was given with her authority, however the Tribunal preferred the evidence of the solicitor in her employ who emailed the undertaking to the barrister.
Ms King was also found guilty of other charges, including withdrawing trust monies without authorisation, failing to provide an itemised bill and failing to comply with a written notice from the Commissioner. However, the Tribunal accepted the Commissioner’s submission that the failure to honour the undertaking to the barrister was the most serious of the charges.
The Tribunal ordered that Ms King should be struck off as she was not a proper person to remain on the roll. A significant factor which contributed to this conclusion was her lack of insight into her offending behaviour, as demonstrated by her various attempts to mislead the Commissioner and the Queensland Law Society, including the fabrication of evidence to support her position. In this way, the Karen King case bears a disturbing similarity to the case of Paul Anthony Dempsey, who in 2009 was struck off, partly for knowingly giving false evidence to the then Legal Practice Tribunal in an attempt to defend himself against the charges he faced.
Both of these recent cases show that solicitors should act honestly and ethically at all times in their professional dealings with barristers. In particular, solicitors should not blame barristers they instruct when things go wrong without good cause. And of course, when solicitors provide undertakings to barristers they must honour them.
Another important aspect to these cases is that when a lawyer is investigated, he or she would be best advised to be honest and frank in responding to any allegation of wrongdoing, including making full admissions where appropriate rather than attempting to conceal such lapses. Legal practitioners who admit their wrongdoing and express remorse are treated more leniently than lawyers who compound their predicament with implausible explanations for the evidence against them. The way Ros Janes and Karen King both responded to investigations and proceedings against them contributed to the substantial penalties imposed on them.
Perhaps solicitors would be well served to read Dr Tom Altobelli’s Working With Barristers publication.
The laws of defamation apply to social media as much as they apply anywhere else:
A FORMER high school student has been ordered to pay $105,000 to a teacher for writing defamatory remarks about her on social media in what is believed to be Australia’s first Twitter defamation case to go to trial.
Former Orange High School student Andrew Farley, 20, made “false allegations” about music teacher Christine Mickle on Twitter and Facebook in 2012, a year after he had left school.
Mr Farley, who had never been taught by Ms Mickle, seemed to bear a grudge against the 58-year-old based on a belief that she had something to do with his father, also a teacher, leaving the school, District Court Judge Michael Elkaim said in his ruling.
“There is absolutely no evidence to substantiate that belief,” Judge Elkaim said. “The effect of the publication on the plaintiff was devastating.’’
Anyone who frequents Twitter (or other social media) on a regular basis would know that false and defamatory assertions are often made about people. In some ways it’s a surprise that it’s taken this long for such a case to result in an award of damages in Australia.
Another twitter defamation case that went to court is that of Liberal pollsters Mark Textor and Lyndon Crosby against former Labor MP Mike Kelly for a tweet Kelly published about push polling.
When people go on social media to rant, they would be well advised to be careful that they do not open themselves to liability for defamation. A right to rant is not the same as a right to defame.
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.
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.
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.
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.
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.