Cases

Question 1

Legal Services Commissioner v Mullins [2006] LPT 012

Answer 1

FACTS

Mr White injured in a motor vehicle accident. Expert report concluded his life expectancy was reduced by 20%.

At a mediation Mullins gave the other side an outline of argument which was heavily reliant on the content of the report.

After delivery of the report but before the mediation, Mullins discovered that Mr White had severe cancer. Mullins inferred this would reduce White’s life span.

At the mediation the information was not disclosed to the insurer (White specifically asked that it not be disclosed unless required).

Mullins investigated the matter himself, and consulted senior counsel, but did not focus on the significance of his continued reliance on the life expectancy assumption.

At the mediation, insurers were persuaded by the accuracy of the report regarding his life span.

COURT

Disclosure obligations influenced by context. Disclosure obligations for a fiduciary usually extend beyond arm’s length commercial negotiations, and parties should anticipate a measure of honesty from one another.

BAQ Rules (48 and 49) specifically require that barristers not making false statements, and must correct any false statements.

By relying upon the report after discovering the cancer, and knowing the insurer was relying upon it, Mullins had “intentionally deceived” them about the accuracy of the assumption.

Question 2

Bale v Mills (2011) 282 ALR 336

Answer 2

Dispute regarding whether solicitor had misled client and failed to properly inform him of actual financial entitlements from Centrelink settlement.

Prohibition on further correspondence with the court (see also Virgtel v Zabusky. Compare Ken Tugrul v Tarrants)

1. Argument regarding Browne v Dunn had not been properly ventilated at trial; the provision of further submissions granted from the President. However both parties provided submissions to chambers in respect of another ground as well.
2. High Court and multiple COA have expressly made clear that further materials after an appeal are not to be filed with leave being given.
3. Doing so undermines and derogates the principles of open justice.
4. Parties have no right to place further material before the court without leave. Property course is for the matter to be relisted so that an application to “enlarge the record” can be made and determined in open court.

[Note further: discussion regarding Briginshaw standard (severity of the imputation again solicitor) and Browne v Dunn (allegations not put to solicitor during cross-examination), and COA finding about his ‘failure’ to take notes actually being consistent with his recollection nothing had happened]

Note also

● Take notes of significant events (lawyer did not do this = lead to being deemed unreliable)
● Every witness should be confronted with and offered an opportunity to respond to an allegation of dishonesty (lawyer accused of lying after XXN over)
● Improper to send further material after appeal without leave = undermines admin of justice and court will usually ignore the material.
● Proper course = re-list proceedings so application to enlarge record can be made in open court.

Question 3

Virgtel Limited v Zabusky [2009] 2 Qd R 293; [2009] QCA 92

Answer 3

Provision of further submissions to the Court not permitted without leave (see also Bale v Mill. Compare with Ken Tugrul v Tarrants)

Section 253 (Supreme Court Act [repealed]): What orders shall not be subject to appeal. At first instance, orders for costs made by de Jersey CJ and McMurdo J. Zabusky sought a stay of orders for costs until determination of the principle proceedings. Stay application refused, and that decision was appealed. COA found that strictly the primary judge’s refusal to stay was not an “order for costs” and therefore therefore not appealable under relevant section.

1. Following the appeal hearing, Virgtel submitted further written submissions (absent any request from the court, and in which no leave had been granted). The Court stated that:

“…the fair and efficient administration of justice requires that parties to an application or appeal in this Court make their submissions at the hearing afforded them by the Court”.

2. The court noted that although the court may request and grant leave for further written submissions, in this instance the appellant had not sought leave and therefore the court should decline to receive the further submissions.
   Would be unethical to do so without leave.

NOTE BAQ Rule 33 however - when additional relevant case law must be brought to court’s attention

Question 4

Tri-Star Petroleum Company v Australia Pacific LNG Pty Limited [2017] QSC 136

Answer 4

Whether a special protocol of confidentiality should be imposed and the extent to which it differs from the typical legal obligation.

Two tranches of documents

(1) Confidential documents over which additional protection (above the implied obligation) was required, requiring a confidentiality protocol to be entered into

(2) Documents so confidential and commercially sensitive key officers of Tri-Star could not have access to them (requiring a ‘Fielder Gillespie’ order)

THE USUAL RULE

Any party disclosing documents (whether by order of the order or a rule of a court), the receiving party is subject to a legal obligation:
(a) not to use it for purpose unrelated to the conduct of the proceeding; unless
(b) the information is received into evidence

This is referred to the “implied undertaking” (Harman undertaking) but should be better regarded as a:

“substantive legal obligation to the court, which arises by operation of law by virtue of the circumstances under which the material was generated and received. The obligation so arising also binds third parties if they know of the origins of the material in legal proceedings.” (Citing Hearne v Street (2008) 235 CLR 125)

WHEN MORE ONEROUS OBLIGATION TO BE IMPOSED

1. Should not be understood as a different standard - it is a reminder to make ‘explicit…that the documents only be used for the purpose of the proceeding.
2. Instances where the implied obligation is insufficient are the EXCEPTION, not the rule. The High Court in Hearne v Street made clear that:
   (a) The purpose of any ‘express undertaking’ is to make explicit…that the documents only be used for the purpose of the proceeding;
   (b) It is not a different standard, and that same obligation does exist in more routine cases (if this weren’t the case, parties would need to more frequently seek express undertakings. This occurs in exceptional cases; if it were generally necessary it would be extremely cumbersome and extremely wasteful of time, energy and money.
3. Issue for the court is determining where to strike the balance between competing interests. Per Mobile Oil v Guina: there is no specific rule for this determination; each case will fall for determination according to its own facts.
4. Bond J found it was exception such that the implied obligations were insufficient because they included sensitive commercial documents not publicly available, including forecasts of upcoming gas sales.

● Special protocol for confidentiality may be imposed if persuaded that case has exceptional circumstances and the implied obligation offers insufficient protection.
● Court will strike a fair balance between confidentiality concerns and the needs of the other side to access documents.

Question 5

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110

Answer 5

Plaintiff injured in the course of employment. Court turned to considered evidence from defendant’s witnesses regarding the day in question and typical nature and regularity of the defendant’s ski setup.

WITNESS CONFERRAL

1. Each witness from defendant gave consistent evidence. Those witnesses were asked in XN whether they had conferred; one witness (Laing) confessed they had discussed evidence with a host of other witnesses who were staying in a hotel together.
2. EXHIBIT K

Exhibit K consisted of a letter from a partner and ‘witness protocol document’. The letter noted an earlier teleconference, and:

(a) provided the witnesses with “some possible areas of questioning (to be passed on to the respective witnesses) that each witness can expect to be questioned on”; and
(b) Identified each of the areas of evidence each specific witness would likely be queried on and what their suggested answer could be (generally)

The witness protocol given to witnesses stated that it was “not about facts about credibility” and gave style tips such as “don’t be dogmatic, ie I am sure this happened and this must have happened” etc.

FULL COURT

(a) At [30] the COA stated:

(i) It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses.

(b) In this instance: it seems clear that intention was for all of the defendant’s witnesses to “speak with one voice about the events that occurred”.

(c) The COA accepted that the plaintiff / appellant had failed to pursue the witness protocol issues (see [33]) however determined that the trial judge had failed to deal with the issue, or said anything about the credibility of the defendant’s witnesses, and therefore failed to deal with critical evidence (requiring the judgment be set aside and a new trial ordered).

(d) COA also referred the solicitor to the Legal Services Commission

NOTE –> This conduct would be prohibited by rules 68-70 of the BAQ Rules

Question 6

Ken Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) [2013] NSWSC 1971

Answer 6

Four circumstances were communications with judge’s chambers permissible. Compare with Bale v Mill and Virgtel v Zabuksy

1. The court made orders requiring both parties’ experts to meet in conclave and prepare a joint report detailing the matters agreed upon, disagreed upon, and the reasons for the disagreement.
2. Plaintiff’s solicitors instead sent the joint report (as ordered) and additional notes from the experts (not ordered) acknowledging in the covering email that the defendant had objected to the inclusion of one of the notes

COMMUNICATIONS WITH CHAMBERS

3. Citing R v Fisher [2009] VSCA 100; (2009) 22 VR 343 the COA stated:

(a) It is common place for judges to be provided with bundles, not all of which will be read or tendered;
(b) But anything provided by a party must be provided to the other side;
(c) Any communications with chambers are subject to important qualifications, and should typically only relate to matters of practice or procedure. Communications containing allegations, matters of substance, or request for advice, should not be forwarded to a judicial officer without express consent
(d) (These principles are reflected in the solicitors’ conduct rules and barrister rules)

8. In applying the rules, the judge determined that the joint report (which complied with the orders) was entitled to be sent. The annexures should not have been, and the covering email drawing attention to the disagreement did not cure that breach

There should be no communication (written or oral) with a judge’s chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings.

EXCEPTIONS

(a) Trivial matters (practice, procedure, administration – start time, whether robing etc)
(b) Ex parte matters
(c) Communications responding to the judge or authorised by existing order; or
(d) “exceptional circumstances”.
(e) Even in these exceptions however – the reason for the communication should be expressly brought to the associate’s attention including the reason why it is not being sent with the other parties’ knowledge or consent

Note BAQ rules from 53-55
*Barrister must not communicate in opponent’s absence unless in response to court, or opponent has consented