Following a marathon mediation, former Wallabies star Israel Folau and Rugby Australia have settled their dispute over the termination of Folau’s employment with Rugby Australia after he made controversial comments on Twitter about homosexuality.
The case was notable and of political significance because it highlighted the tensions between the rights of employers to dismiss workers to preserve their own reputational interests, freedom of religion, and employees being able to publicly express their own opinions outside of work.
It’s understood it’s a favourable result for Folau, who not only will receive an undisclosed sum in damages, but who also received a public apology from Rugby Australia.
Janet Albrechtsen reports:
“On Wednesday afternoon, following marathon mediation negotiations, RA wholeheartedly apologised to Folau. In fact, the humiliating settlement overseen by Castle saw RA “acknowledge and apologise for any hurt or harm caused” to both Israel and his wife, Maria. It reads like a mea culpa from RA for being part of the pile-on that Maria endured when she publicly supported her husband during this battle.
“Folau received money from RA, too. That’s in addition to the $2.1m fighting fund to cover his legal expenses from Australians who support Folau’s right to express his religious views, even if many — like me — disagree vehemently with his views. That, after all, is the real test of our commitment to freedom of expression, and religious freedom, in a liberal democracy.”
Reading between the lines, Rugby Australia’s legal position may not have been as strong as they were claiming. But another explanation is that the ongoing drama with the player who used to be their biggest star overshadowing the game itself would have proven very costly in itself.
With its latest big win, Sterling Law is establishing its place as an elite Queensland litigation firm, and a force to be reckoned with.
When Joanne Murdock deliberately remained uncontactable to her solicitors for an extended period of time, she received a bill from them for all the work they had done for her.
The bill set out the charges item by item, particularising the date, the time spent and the person who performed the work, but for most items only provided very concise descriptions of the work performed. Examples later complained of included “attendance with you”, and “telephone attendance with you”.
Nearly a month later, Joanne Murdock saw another firm named Whitehead Crowther Lawyers for advice on the bill. They wrote to her former solicitors requesting “a bill in itemised format prepared in accordance with the law society rules (sic)”. Because of Joanne Murdock’s failure to make any part payment, secure the costs of her former solicitors or even accept instructions for service, her former solicitors commenced proceedings in the Magistrates Court of Queensland for recovery of their fees and disbursements.
A few months later, her former solicitors obtained summary judgment at a hearing before Magistrate Noel Nunan, who also refused to order a costs assessment.
Joanne Murdock then appealed this decision, appointing Rose Litigation Lawyers to do so. Rose Litigation Lawyers filed a Notice of Appeal, in summary contending that Magistrate Nunan had erred in finding the bill was an itemised bill and for refusing to order a costs assessment.
Section 300 of the Legal Profession Act 2007 (Qld) defines the following terms:
“itemised bill” means a bill stating, in detail, how the legal costs are made up in a way that would allow the legal costs to be assessed under division 7.
“lump sum bill” means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.
Section 332 of the Legal Profession Act 2007 (Qld) relevantly provides that:
332 Request for itemised bill
(1) If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.
A bill in the form of a lump sum bill includes a bill other than an itemised bill.
(2) The law practice must comply with the request within 28 days after the date on which the request is made.
(5) If the person makes a request for an itemised bill within 30 days after receiving the lump sum bill, the law practice must not commence proceedings to recover the legal costs from the person until 30 days after complying with the request.
The Legal Profession Act 2007 (and the many statutes before it) provides for a process where an independent person known as a costs assessor goes through a lawyer’s bill and decides which charges on a bill are fair and reasonable, and should be allowed. This process is known as a costs assessment, and is primarily intended to protect clients of solicitors. Section 335 of the Legal Profession Act 2007 (Qld) relevantly provides that:
335 Application by clients or third party payers for costs assessment
(1) A client may apply for an assessment of the whole or any part of legal costs.
(10) Subject to this section, a costs application under subsection (1) or (2) must be made in the way provided under the Uniform Civil Procedure Rules.
Rule 740 of the Uniform Civil Procedure Rules 1999 relevantly provides that:
(1) After a certificate of assessment is filed, the registrar of the court must make the appropriate order having regard to the certificate.
(2) The order takes effect as a judgment of the court.
Rule 743A of the Uniform Civil Procedure Rules 1999 relevantly provides that:
743A Application for costs assessment
(1) A person applying for a costs assessment must apply to the relevant court.
(2) The application must—
(a) be in the approved form; and
(b) state the names of any persons to whom notice must be given under the Legal Profession Act 2007, section 339 (1); and
(c) if practicable—
(i) nominate a particular costs assessor for the assessment; and
(ii) state the applicable hourly rate of the nominated costs assessor; and
(d) be accompanied by the following—
(i) an affidavit;
(ii) if applicable, the nominated costs assessor’s consent to appointment to carry out the costs assessment and confirmation that, if appointed, there would be no conflict of interest;
(iii) the prescribed fee.
(3) If the applicant has an itemised bill for all of the costs to be assessed under the application, a copy of the itemised bill must be an exhibit to the affidavit.
(4) If the applicant does not have an itemised bill for all of the costs to be assessed under the application, the best information the applicant has as to the costs to be assessed must be included in the affidavit.
(5) The affidavit must also—
(a) state whether the applicant disputes or requires assessment of all or what part of the costs; and
(b) if the applicant disputes all or part of the costs, state the grounds on which the applicant disputes the amount of the costs or liability to pay them.
In Keene v Ward  EngR 1210, The Queen’s Bench held that a solicitor’s bill must contain sufficient information for him to obtain advice about taxation, but that an exactness of form was not required.
In Cook v Gillard  EngR 942, the House of Lords held that a solicitor’s bill which failed to specify in which Court the business was done was still valid, as such information would presumably already be within the knowledge of the client.
In Haigh v Ousey (1857) 7 El. & Bl. 578 119EngRep, it was held that the question of whether a bill was sufficient for a client to be advised about whether to seek taxation of the solicitor’s costs depended on what further information the client was able to tell their advisors about the charges.
In Clayton Utz Lawyers v P & W Enterprises Pty Ltd  QDC 5, Judge Reid of the District Court of Queensland held that the generalised and incomplete descriptions of the work in the bills provided by the law firm were not itemised bills within the meaning of the Legal Profession Act 2007 as they provided “a wholly inadequate explanation of the work actually performed”. Consequently, the law firm was ordered to deliver itemised bills.
On the other hand, in Pott v Clayton Utz  QSC 167 it was held by the Supreme Court of Queensland that the client has an onus to show what further information they require to get advice about applying for a cost assessment, otherwise the solicitor’s bills would be presumed to be itemised bills, and that merely swearing to a generalised concern of overcharging is insufficient to discharge this onus.
At the hearing, Judge Porter QC immediately identified that the central issue of the appeal was whether the bill provided was an itemised bill within the meaning of the Legal Profession Act 2007, as all of the grounds of appeal depended on the bill being found to not be an itemised bill. His Honour also correctly noted that the central problem for Joanne Murdock was that she had not sworn any affidavit in the Magistrates Court proceedings concerning the extent of her knowledge of the charges contained in the bill. An adjournment application to adduce fresh evidence at the hearing was dismissed ex tempore.
Whilst Judge Porter QC held that a proper request for an itemised bill had been made within 30 days as required to enliven the prohibition on suing in section 332(5) of the Legal Profession Act, he also held that the bill was an itemised bill, and therefore there was no prohibition on the law practice commencing recovery proceedings when it did. The reasons why the bill was an itemised bill were because it specifically identified all the work performed and the names of other persons involved, most of the unparticularised attendances involved relatively short periods of time, and that Joanne Murdock would be expected to know much about the work performed for her. In any event, the absence of evidence by Joanne Murdock as to the extent of her knowledge meant that she had failed to discharge the onus of showing she did not have sufficient information to obtain advice about the bill.
Judge Porter QC rejected other arguments in support of the appeal, including that Magistrate Nunan should have ordered a costs assessment, that the terms of the mandatory costs disclosure provided to Joanne Murdock formed a part of the contract between herself and the firm, and that the Defence filed for Joanne Murdock constituted evidence of the truth of its contents because it was exhibited to an affidavit filed by the firm.
Because there was no error on the part of Magistrate Nunan, the appeal was dismissed with costs.
This case is the latest in a long case history of clients being sued for outstanding fees complaining about the sufficiency of the contents of the bill in order to avoid judgment being entered or standing against them. Applying the established principles derived from the case law, the District Court held that the client had failed to discharge her onus to show that the bill was not an itemised bill, because she had not provided any evidence of the extent of her knowledge of the work done for her. As a result, the appeal had to be dismissed.
This case again shows how whether a bill is sufficient will vary from case to case, depending on the client’s own knowledge or presumed knowledge. The (common) view that it is only the information that is contained on the face of the bill itself that matters is erroneous, because the test is whether another solicitor can provide advice based on the contents of bill supplemented by the client’s own knowledge of the matter. It is only when the sum of these two factors still means that the client cannot make an informed decision of whether to seek a costs assessment that the bill can be deemed inadequate and (upon a proper request) the prohibition on the law firm suing provided in section 332(5) of the Legal Profession Act applies.
Last year, Professor Peter Ridd was sacked by James Cook University after speaking out on issues relating to climate change research.
He took James Cook University to the Federal Circuit Court, arguing his termination of employment was unlawful.
Today, Ridd has won his case, with the Court awarding judgment in his favour:
“Handing down his decision today, judge Salvatore Vasta said that the 17 findings used by the university to justify the sacking were unlawful.
“The Court rules that the 17 findings made by the University, the two speech directions, the five confidentiality directions, the no satire direction, the censure and the final censure given by the University and the termination of employment of Professor Ridd by the University were all unlawful,” Judge Vasta said.
A penalty hearing will be set for a later date.
At a hearing last month, Professor Ridd’s barrister Stuart Wood argued his client was entitled to criticise his colleagues and the university’s perceived lack of quality assurance processes.”
This is a win for free speech and academic freedom.
Actor Geoffrey Rush has won his defamation case, with Justice Wigney that finding Nationwide News did not make out its truth defence:
“Geoffrey Rush has won his defamation case against a Sydney newspaper publisher and journalist over articles saying he’d been accused of inappropriate behaviour. The 67-year-old actor had sued The Daily Telegraph’s publisher and journalist Jonathon Moran over two stories and a poster published in late 2017.In Sydney’s Federal Court on Thursday, Justice Michael Wigney found Rush had been defamed.“Nationwide News and Mr Moran did not make out their truth defence,” the judge said.”
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb  HCA 4.
Truth is a defence at common law, however in order for such a defence to succeed, the defamatory matter must be true in substance and effect: Howden v ‘Truth’ & ‘Sportsman’ Ltd 1937 58 CLR 416. Therefore, the defendant must prove that the meaning of the defamatory imputations are true and accurate in all except the most minor details, they must also prove the correctness of any inference that a reasonable person may draw from the matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1.
Furthermore, Section 25 of the Defamation Act 2005 provides that:
The Sydney Morning Herald reports:
“Oscar-winning actor Geoffrey Rush has been awarded $850,000 in damages and will receive further damages for economic loss after he won his defamation case against Sydney tabloid The Daily Telegraph over reports accusing him of “inappropriate behaviour” towards a female co-star.
In a judgment summary delivered in court on Thursday, Federal Court Justice Michael Wigney said the Telegraph had failed to establish a defence of truth to its claims and he was not satisfied the events occurred “as alleged”.
“This was, in all the circumstances, a recklessly irresponsible piece of sensational journalism of the worst kind. The very worst kind,” Justice Wigney said.”
The question of whether an injunction sought by Rush and the issue of costs will be decided at a later case management hearing.
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.
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  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  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  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.
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:
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.
The District Court’s decision to dismiss a teacher’s claim for slipping during a fruit break shows that a lack of previous incidents can be decisive on the question of liability.
Debbie Deans was employed by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape during a ‘fruit break’ during the course of her employment, fracturing her left patella.
She sued her employer, claiming that it was negligent for failing to:
(a) take reasonable care for her safety;
(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;
(c) supervise her so as to ensure she carried out her employment safely;
(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;
(e) provide a safe work environment within which her was required to perform her duties;
(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;
(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;
(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.”
305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
Deans’ lawyers argued the general notoriety of young children dropping things and leaving them on the floor meant that this risk was foreseeable as defined in section 305B(1)(a).
Farr SC DCJ rejected this argument, noting there was no evidence of any previous incidents of people slipping on things dropped by children at Riverside Christian College, or at any other school. Nor was there any evidence that Riverside Christian College knew of this particular risk of injury. Therefore, the risk was held not to be foreseeable.
The argument that Riverside Christian College had conceded foreseeability by also pleading a defence of contributory negligence was also rejected because it ignored the statutory definition of “obvious risk” contained in section 305I of the Workers’ Compensation and Rehabilitation Act, and was contrary to the High Court’s decision in Thompson v Woolworths (Queensland) Pty Ltd  HCA 19.
A further issue which Farr SC DCJ considered was whether the risk was not insignificant within the meaning of s305(1)(b) of the Workers’ Compensation and Rehabilitation Act. Farr SC DCJ noted that the fruit break had been taking place for five years without any previous incident, and the relevant area would have been traversed by thousands if not tens of thousands of people at and around the fruit breaks. For these reasons, Farr SC DCJ held that the risk of injury arising from items being dropped on fruit breaks was insignificant.
As a result of these findings, Riverside Christian College had not breached its duty of care, and therefore the claim for negligence had to fail.
This case demonstrates that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are foreseeable or significant within the meaning of the law.
This decision is good news for schools, who can now have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued as long as such activities are conducted as safely as practicable.