In his second reading speech on 11 March 2003, Mr Welford, the Attorney-General, stated that the introduction of the proportionate liability (“PL) regime erected by Chapter 2, Part 2 of the Civil Liability Act 2004 (Qld) (“CLA”) was “in response to the concerns raised by professional bodies about excessive professional indemnity premiums and the potential for unlimited liability for large claims”¹.

How did the CLA fare for the Solicitors for the subject claim? In answering this question I will firstly deal with the causes of action the Lender has pursued against the Solicitors, in order to determine whether the Solicitors can take the benefit of the PL regime erected by the CLA, or the regime under any other relevant statute.

 Lender’s causes of action against the Solicitors

The factual analysis shows that (absent negligence by the Solicitors and others) this loan transaction would not have occurred. In particular, had the Solicitors used reasonable care and skill in the giving of their advice, the title to the security property would have been demonstrated to have been defective (in a matter critical to its valuation) and therefore the loan transaction would not have occurred. The Lenders resulting loss is calculated as follows:

Sum lent to borrower	$2,000,000
Sum recovered from security	$500,000
Value of security at time of loan	$750,000
Loss	$1,500,000
Amount of contributory negligence by plaintiff	0%
Recoverable loss	$1,500,000

    
  
  
   
   

 

 

To recover its loss, the Lender can sue the Solicitors in contract (for breach of the implied term in the retainer that the Solicitors would exercise that degree of care and skill which would be exercised by a reasonably competent Solicitors) and in tort for breach of a similar duty, arising by reason of the existence of the retainer. 

There is no Fair Trading Act claim by the Lender (regardless of the facts), because the Lender is a corporation and therefore cannot be a consumer under the FTA (FTA s.6). Only a consumer can bring an action for damages for a contravention of the FTA misleading conduct provision, s.38: FTA, s.99 (4). 

In the seminar problem, the Lender has not pleaded any Federal misleading conduct claim.  It might have done so, relying on s.82 of the TPA as a basis for damages for breach of s.52 of the TPA, even though the Solicitors are not a corporation: see s.6 (3) of the TPA.

Alternatively, if the conduct by the Solicitors was conduct in relation to either “financial services” or a “financial product”, or a “financial service”, the Lender may have been able to sue the Solicitors for damages for misleading conduct under s.1041H of the Corporations Act 2001 or s.12DA of the Australian Securities & Investment Commission Act 2001.    

The next issue is which of those causes of action are “solidary” claims and which “apportionable claims” under relevant State and Federal legislation, and why this is so.

Apportionable claims

The Lender’s retainer with the Solicitors arose in Queensland, and was breached in Queensland and the loss occurred in Queensland. In these unambiguous circumstances, at least as far as the Solicitors are concerned, the proper law of PL is the law of Queensland: Rogerson [2002] 203 CLR 503 at [81]. In cases involving cross- jurisdictional wrongdoing, it may be necessary to select another PL law as applying to the claim.

I take the view that both causes of action advanced by the Lender against the Solicitors are “claims “ and “apportionable claims” under the relevant legislation, the CLA. Why ?

The key provision is CLA s.28(1).

The plaintiff’s pleadings, that is to say the way that a plaintiff articulates its claim, are not determinative of whether the claim is an “apportionable claim” . The nature of the claim is not determined by the words in which it is framed². The word “claim” refers to a claim as proved and established, not a claim as made or advanced³.

Having regard to the Dictionary definitions of the words “claim”, “duty” and “duty of care” in CLA s.28(1) it is clear that the Lenders causes of action against the Solicitors are for economic loss “in an action for damages arising from a breach of a duty of care”.

The term “duty of care” means “a duty to take reasonable care or to exercise reasonable skill (or both duties)” and applies whether that duty is in tort , or under a contract imposing a duty which is concurrent and co-extensive with a duty of care in tort. There is a slight difference in wording between CLA 28 and other State analogues. There have been no reported cases on CLA s.28, so it is difficult to see whether the Courts will find any practical distinction between a claim for damages “arising from a breach of a duty of care” and for damages “arising from a failure to take reasonable care”, the New South Wales definition. For the purposes of the current problem, the distinction would be immaterial.

If the Solicitors warranted to produce a particular result, a claim for damages arising from breach of that warranty would not be an apportionable claim under CLA 28. This is because the Solicitors would not have failed to exercise reasonable care and skill, they would have simply failed to produce what they contracted to produce. 

Sometimes the dividing line between a promise to do something, and a promise to do something with reasonable care, will be a fine one, but generally in professional negligence cases, the promise is to take reasonable care or exercise reasonable skill in the task entrusted. This is such a case. Here, the Solicitors retainer to check the title to the security property can hardly be described as a retainer “to provide something”. In my view it is rather a retainer to advise,  in the context of a mortgage lending risk.  The same can be said, perhaps less forcefully, in relation to the retainer to calculate the maximum loan amount for insertion in the loan documents.

The warranties in building case can be a useful contrast.  A contract with a builder to build a house of a particular design involves the assumption of a number of contractual duties , including supplying material of adequate quality and in accordance with the specification , and carrying out the work itself with the care and skill to be expected of a skilled tradesman.  However, in the standard case of a breach ( by the use of non-specified materials , or in a way inconsistent with the design drawings ) the complaint is not that the builder failed to exercise reasonable care and skill, but rather that it failed to supply what was contracted for. 

Accordingly, having regard to the provisions of the CLA, s.28, the Lender’s claims are subject to the PL regime of Queensland.

Under the TPA , the Lender’s claim ( if advanced) would also be an apportionable claim under TPA s.87CB , as a claim for damages made under s.82 for economic loss “caused by” conduct that was done in contravention of s.52.

Joinder : who are concurrent wrongdoers?

The Lender has taken no steps to effect joinder of any concurrent wrongdoer, in breach of CLA s.32 which provides to the effect that a claimant who makes a claim to which the PL provisions apply is to make the claim against all persons the claimant “has reasonable grounds to believe may be liable for the loss and damage”.

There is a complimentary duty on the Solicitors to inform the Lender of relevant information they have access to “about the circumstances that make them believe the other person is or may be a concurrent wrongdoer in relation to the claim”: CLA 32(2). The Solicitors duty exists regardless of the Lender’s failure to abide by its complimentary duty. If necessary, the Solicitors can apply for orders for any costs thrown away as a result of Lenders failure to join the Valuer, although it is hard to see what those would be in the standard case: CLA 32(5).

In order to ensure that they get the benefit of the PL regime, the Solicitors need to join as many concurrent wrongdoers as defendants to the claim as they can. 

CLA s.30 identifies that a concurrent wrongdoer in relation to a claim is a person who is “one of two or more persons whose acts or omissions caused, independently of each other, the damage that is the subject of the claim”. The question of who is a concurrent wrongdoer is to be addressed by reference to the findings as to liability and causation made in the proceedings⁴.

There are three questions which determine whether a party is a concurrent wrongdoer:

It is not necessary for defendant who seeks to minimise the extent of its own liability under PL to assert a cause of action by the plaintiff against the other concurrent wrongdoer which is itself an apportionable claim, arising from a failure to take reasonable care, or one of the other descriptors. Indeed it is likely that in many cases the joinder of concurrent wrongdoers will be in respect of claims that are not themselves apportionable claims.

Pleading and joinder by defendant

Here,  the Solicitors ( even at this early stage) clearly have reasonable grounds to identify the Valuer as a concurrent wrongdoer in tort or under the TPA. The Valuer expressed an opinion which (putting aside the bribe) was without a reasonable basis, and (having regard to the bribe, which the Solicitor probably does not know about) was not an opinion actually held. Therefore, the Lender could have sued the Valuer under s.82 of the TPA, or for breach of a duty of care imposed at common law arising by reason of reasonable reliance on advice given in a business context in circumstances where the Valuer knew of the intending reliance. The Lenders loss in each case is the same loss.

The Solicitors duty to advise the claimant of the identity of concurrent wrongdoers under CLA 32(2) and (3) could be satisfied by the service of an appropriately particularized and timely defence. The Solicitors should therefore file a defence claiming, in the alternative to any denial of liability, an entitlement to PL, identifying as many concurrent wrongdoers as are arguably within that category.

The Solicitors can obtain leave to join a non-party concurrent wrongdoer in the action: CLA s.32C(1)). They should do so to ensure that there is no discretionary basis for the Court to exclude the responsibility of a non-party concurrent wrongdoer at the apportionment stage: CLA s.31(3)). For Federal claims, a defendant is not required to join others to the proceeding, rather it is merely required to lead evidence regarding the other party’s comparative responsibility for the loss. 

Where a non-party concurrent wrongdoer is uninsured and insolvent, it will not contest the proceedings. It seems to me that this will (or may) result in an apportionment which tends to understate the responsibility of the actively defending concurrent wrongdoers, compared to the responsibility that might have been allocated had those non-party defendants contested the proceedings.

In order to enliven the jurisdiction to permit joinder of an alleged concurrent wrongdoer, the Solicitors need only plead a case “which is not hopeless”⁶.

However, the pleading requirements should not be underestimated.  The Solicitors must plead the existence of a particular person said to be a concurrent wrongdoer, the occurrence of an act or omission by that particular person, and a causal connection between that occurrence and the loss that is the subject of the claim⁷.

They must also identify the basis for the cause of action — if it be contract, identify the contract; if it be tort identify the duty, its scope and the breach, and the damage — the aspects of causation, the alleged extent and proportion of the damages and the causal connection with the damage said to be suffered by the Lender in the substance of the proceeding⁸.

Court assistance

If necessary, the Solicitors can invoke interlocutory processes, prior to pleading, to allow them to identify concurrent wrongdoers and the basis for those persons’ fault as against the Lender.  Under UCPR 366, the Court may make any order or direction about the conduct of a proceeding it considers appropriate, and that rule would admit of considerable flexibility. That might allow pre-pleading interrogatories in an appropriate case⁹.

Where the issue is pre-pleading disclosure in favour of defendants who have (or assert) an entitlement to proportionate liability, there are a number of issues which are yet to be worked out in the cases. They will include , as they do in the Norwich Pharmacal¹⁰ environment, the extent to which it will be necessary for the defendant to demonstrate the existence of a cause of action in respect of which discovery is sought to aid, the extent to which disclosure should extend to “information” discovery rather than “identity” discovery , and what range of third parties will be compellable, particularly whether it will extend to persons with no connection with the wrong, other than that he or she has some document in his or her possession or power in relation to the matter¹¹.

While the rules are not without some complexity, it would in my view be sufficient for the Solicitors to show that the Lender arguably has a cause of action against a third party , and that pre-pleading disclosure against the person concerned is reasonably necessary to enable that case to be advanced as a basis for PL , or otherwise to enable justice to be done. 

Borrower as a concurrent wrongdoer 

In my view the Borrower is a concurrent wrongdoer because in giving the contractual warranty (that it had and would retain sufficient net asset backing so as to be able to repay the full amount of the loan for its duration ) the Borrower gave a contractual promise for which there was no basis, which constituted misleading conduct either under TPA s.52 or one of the other misleading conduct federal statutes, which conduct misled the Lender into making the loan¹². In a “no-transaction” case, the Lenders loss in each case ( against the Solicitors, the Lender and the Valuer ) is the same loss.

Here, the Lender will not seek to advance any claim against the Borrower because the Borrower is a shell and that would be a waste of money.

Planner as a concurrent wrongdoer 

To complete the picture, one needs to look at the Planner’s liability. The Planner is at least arguably a concurrent wrongdoer to the Lender because it gave written advice to the Borrower (relied on by the Lender in Queensland) that the minimum lot yield was 10 lots per hectare, when careful peers would have advised that the minimum lot yield was 5 lots per hectare. The Lender relied on the Planner’s estimate and gained comfort from that advice , without which it would not have made the loan . It was reasonable for it to do so. The Lenders claim against the borrower is in tort or perhaps a TPA claim. In a “no-transaction” case, the Lenders loss in each case is the same loss.

Principles of apportionment

The overriding principle of apportionment is set out in CLA s.31(1)(a) that the liability of a defendant who is a concurrent wrongdoer in relation to an apportionable claim is limited to an amount reflecting that proportion of the loss or damage claimed that the Court considers just and equitable, having regard to the extent of the defendant’s responsibility for the loss and damage.  The Court “may” have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding.

In the decided cases under PL, blameworthiness and causative potency are recognised as determinatives in apportioning responsibility in much the same way as they were under the contribution statutes¹³:

(a) Any free floating notion that “equality is equity” cannot operate,  even as a starting point¹⁴.

(b) The Court should apportion liability according to considerations such as (but not limited to) which of the wrongdoers was more actively engaged in the activity causing loss and which of the wrongdoers was more able effectively to prevent the loss happening.

(c) So a wrongdoer who is, in a real and pragmatic sense, more to blame for the loss than another wrongdoer should bear more of the responsibility¹⁵. Whether conduct is devoid of causative force is relevant¹⁶.

(d) The degree of a party’s departure from its expected standards is relevant.

(e) Whether a wrongdoer has profited from the wrongdoing and retains the profit may be taken into account¹⁷.

(f) When directing contribution between the two solvent defendants,  it seems unlikely that the Court will have regard to the fact that one of the responsible defendants is insolvent¹⁸.

It can be seen in the Problem that one partner in the Solicitors firm deliberately refrained from advising his other partner of the existence of the statutory easement. On my analysis, this would not give rise to a claim by the Lender (in equity) against the firm for breach of a proscriptive fiduciary obligation, because no unauthorised benefit was obtained as a result.  In my view the relevant breaches of duty by the Solicitors were of a non-fiduciary obligation to take care¹⁹. In my view there was no relevant dishonesty and thus no fraud²⁰.

Here, neither the Solicitors or the Planner are free from culpability nor was their conduct devoid of any causative force. But there is a very significantly greater degree of culpability on the part of the Borrower and the Valuer and a significantly stronger causative force in both those parties’ conduct than in the Solicitors or the Planner.  

Where a vendor bribes a Valuer to induce a Valuer to inflate the value of the security property by 25% above the justified amount, the valuation itself is fraudulent. If the Valuer is a party “against whom a finding of fraud is made”,  it will be severally liable for the damages awarded against any other concurrent wrongdoer to the claim: CLA 32E. The relevant plea would be found in the Solicitors defence, to the effect that the Valuer’s liability to the Lender arises from intentionally dishonest conduct amounting to fraud. It is unclear what the boundaries of s.32E will be.

The early reported cases attributed a very great proportion of responsibility to parties who were found to have acted fraudulently : see Ginelle Finance Pty Ltd v Diakakis  [2007] NSWSC 60 and Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 at [111] where the split up was 90% to the fraudster and 10% to the solicitor , and Vella v Permanent Mortgages [2008] NSWSC 505 where the split was 72.5% to the fraudster and 12.5% to the solicitor. 

The more recent reported cases are tending to attribute more liability to professionals who by their breach of duty failed to detect the fraud: Solak v Bank of Western Aust Ltd [2009] VSC 82  at [43] (50% to the fraudster; 35% to the advisers; and 15% to the bank) and Spiteri v Roccisano [2009] VSC 132 (40% to the fraudster; 60% to the solicitor).

In terms of blameworthiness and causative potency, the Borrowers conduct is in my view significant , and on par with the Valuer. In the result , each of the joined defendants (save for the Valuer) can say to the plaintiff that their liability to the plaintiff is proportionate.

In my view, were this case to go to trial and judgment, the apportionment would be generally as follows:

There are many things in this world that I do not understand but I suspect that, aside from quantum physics, the thing I understand least is a passionate and overpowering commitment to sport of any denomination (and I use that word advisedly).  In the greater scheme of things I simply cannot see that it matters all that much who wins the grand final or most medals in the Olympics. Yet otherwise ostensibly sane human beings have allowed sport, either the playing of or involvement in, to consume their lives.  I have absolutely nothing upon which to base this other than my own (many would say jaundiced) experience, but it does seem to me that sport takes up more than its fair share of newspaper column space, television time and dinner party conversation.  As for the amount of money paid to professional sports people — that simply doesn’t bear thinking about.

Sport, to those of us who do not indulge, appears to be simply a quick and easy way to sustain bodily injury of a greater or lesser degree. On any weekend, in hospital emergency departments everywhere there are vast queues of people with broken or bloodied body parts listening to a tired and disgruntled nurse saying “There are people in here who are really sick. Your injury is self inflicted. You can cut you own smelly socks/shirt/shorts off, I haven’t got the time.  If you’re lucky the doctor will be here in about five and a half hours.” (I pause here to say that, in this respect, the “easy tearing” rugby shirt introduced in the 2006 Rugby World Cup was not only a welcome relief to women around the world, but to the medical profession as well.)  

Despite the obvious dangers people keep playing sport.  In every city in every country of the developed world there are orthopaedic surgeons with multi-million dollar property portfolios, serious car habits and several ex-spouses supported entirely by people who play sport less well than they thought they could.

However, risking physical injuries that can only be repaired by the insertion of the medical equivalent of an internal meccano set is not the only way to let sport ruin your life.  For some the all consuming desire to win or the single minded pursuit of the fame and money that comes with it leads to decisions of such monumental stupidity one can only stand back and ponder: “What did you think was going to happen you fool?”  The examples of people who fall into this category are legion.  For those who are interested there is an excellent list of the top 25 at “espn.com”.¹  However, in the “life ruining” category special mention should be made of Tonia Harding and her Detroit Bone Crushers², Hansie Cronje, the South African cricketer, and the 1919 Chicago White Sox all of whom, like Cronje, were found to have accepted money to fix matches and banned from playing their chosen sport for life.  At least “Shoeless” Joe Jackson got to come back from the dead and play baseball with Burt Lancaster in Kevin Costner’s back yard.³  My personal favourite, though, is Hermann Ratjen who, in 1936, was told to tuck in his wedding tackle and high jump for the Fatherland on the girls’ team, only to get beaten by three real girls.  Herr Ratjen was last seen working as a waiter in Hamberg.

Usually, the culprits for these life ruining activities are the players themselves or their coaches and managers.  However, a recent case in England, which has predictably become known as “Bloodgate”, establishes that you do not have to play sport or be involved in its administration for it to well and truly ruin your life.

The story so far is this.  Tom Williams was playing winger for the Harlequins against Leinster in the Heineken Cup last season. (I pause again to say that I do not know what any of those terms mean except Heineken but I do not think my experience of a Heineken cup is the same as Tom’s).  Apparently things were going quite poorly for the Harlequins and they decided what was really needed was a field goal specialist.  So Tom, having had the prescience to supply himself with one regulation joke shop blood capsule, unceremoniously popped said capsule in his mouth, broke it and not surprisingly was sent off the field looking like an extra from Twilight — enter Mr Drop Goal who, by the way, had a day job playing for the All Blacks. (Another pause to wonder how one conceals a blood capsule on one’s person while playing a game of rugby without either losing it in one’s foundation garments or choking on it?)

Tom’s undoing was due to the point I make above about sport taking up too much time on television, for indeed the match was televised.  Poor Tom’s gory appearance was considered interest worthy and he was filmed as he came off the field at which time he winked, presumably to Mr Drop Goal but no-one is certain.  The Leinster team doctor noticed this wink and, quite rightly, became suspicious.  He asked to inspect the wound.  Tom became concerned because he didn’t in fact have a wound.

What happened next remains subject to some uncertainty.  There was a meeting in the team dressing room during which Tom’s lack of a wound was discussed.  Present at the meeting were the team manager, Dean Richards, the team physiotherapist, Steph Brennan and the team doctor, Dr Wendy Chapman.  What we can be sure of is that Williams, Richards and Brennan have all ‘fessed up planning the fake blood injury and have been suspended from being involved in rugby for varying lengths of time.

Dr Chapman’s alleged involvement is, if true, of a far more serious and, to any sensible person, baffling nature. Tom Williams has made a statement saying that, concerned that he would be caught cheating, he asked Dr Chapman to actually cut his lip.  And here’s the baffling bit — he says she did.  Thankfully she then patched up the wound.  Dr Chapman, who is an emergency medicine consultant employed by the Maidstone and Tunbridge Wells NHS Trust was suspended from medical practice in mid September pending investigations by the General Medical Council (GMC) which is the UK equivalent of the Medical Board.  The GMC has not released details of the matters under investigation but says they are serious enough to warrant suspension.

Having discussed this case with a number of rugby fans I was genuinely surprised that all of them thought that Dr Chapman’s alleged offence was assisting her team to cheat.  Not one of them, until prompted, considered the outrage of a medical practitioner potentially guilty of intentionally inflicting an injury, no matter how minor, for no clinical purpose.  If the GMC is investigating Dr Chapman’s involvement in Bloodgate that would almost certainly be its primary focus.  If Dr Chapman has intentionally wounded the player, even at his request, it would breach the first principle of the Hippocratic Oath: “First do no harm”. 

The GMC has the power to suspend or withdraw a doctor’s registration if the doctor is regarded as “impaired” which includes a doctor guilty of “misconduct” or “deficient professional performance”.⁴  The terms are not defined in the UK legislation.  In Queensland, doctors can be disciplined if guilty of “unsatisfactory professional conduct” which is defined to include:

(a) professional conduct that is of a lesser standard than that which might reasonably be expected by the public or professional peers;

(b) professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practise of the registrant’s profession;

(c) infamous conduct in a professional respect;

(d) misconduct in a professional respect;

(e) conduct discreditable to the profession;

(f) providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for the person’s wellbeing;

(g) influencing, or attempting to influence, the conduct of another registrant in a way that may compromise patient care;

(h) fraudulent or dishonest behaviour in the practise of the registrant’s profession; and

I would suggest that in Queensland, any doctor intentionally injuring a person in the circumstances alleged against Dr Chapman would risk falling into all but one or two of those categories. 

In his statement, Tom Williams said that Dr Chapman was “not happy” about his request to cut his lip and that she “expressed concern about the potential impact on her career”.  If this is a true reflection of what occurred, Dr Chapman should have expressed more than concern.  She should have expressed a good firm “No” and perhaps then she would not be facing, at the very least, the prospect of a ruined career.   Because here’s the thing:  Why on God’s green and pleasant earth would any sane person chuck in a perfectly decent medical career to protect a bunch of blokes who cheat at rugby specifically in order to get an All Black on the field?  It beggars belief.

The moral of the story is of course, that no matter how much enjoyment we get out of sport, either watching or playing, no matter how rich and famous sports men and women become, and no matter how huge the revenues from broadcast rights and associated advertising, at the end of the day it’s only a game!

Patricia Feeney

Footnotes

1.  Aaron Kuriloff  “25 Great Hoaxes, Cheats and Frauds in Sport” 17 April 2005
2. Tonia Harding was a figure skater who pleaded guilty to conspiring with her husband in 1994 to arrange an assault on her rival Nancy Kerrigan.
3. “Field of Dreams”
4. Medical Act 1983(UK) section 35C
5. Health Practitioners (Professional Standards) Act 1999 Schedule Dictionary

Bar Association of Queensland v Bar Association New South Wales

3 October 2009

The first of many annual cricket matches between the Bar Association of Queensland and the Bar Association of New South Wales was played in 1973.  IDF Callinan captained the Queensland team and Roger Gyles captained the team from New South Wales.  Not long before Callinan was appointed to the Bench, he donated as a trophy the cricket bat that he used in the first match and since then the successful team has held the “IDF Callinan Trophy”.  A check of the records shows Callinan scored 41 on that first day and Gyles 51 for New South Wales. Queensland won the game.

The 36^th match was played on 3 October 2009. L Gyles S.C., (son of Roger Gyles, later Gyles J) led the New South Wales team.

The match was played at Brisbane Grammar School’s Northgate ovals.  New South Wales won the toss and batted.  The wicket was hard and quite quick.  Weather conditions were hot and blustery.  Steele, opening the batting with Ross (“Dallas”) Dalgeish got New South Wales off to a good start.  Steele scored 41.  Carroll, New South Wales’ hard hitting left hander, scored an unusually patient 30, but just as he began to unleash was bravely caught by McLeod at long off (McLeod having plucked the ball from his chest, in which the ball was deeply embedded).  Gyles S.C., noteworthy for his Brierley like captaincy and batting, scored a brisk 21.  Eastman scored 24, out “hit wicket”.  Porter had dismissed him bowling straight and something short of medium pace.  How the batsman was driven back onto his stumps remains a mystery, although Porter will surely describe it to you should you ask him. New South Wales all out for 158. 

For Queensland, Crawford took 3 for 32 in a spell from the Nudgee Beach end reminiscent of Hilfenhaus in England; Taylor 2 for 28 in 8 overs of leggies, wronguns, zootas and flippers; and Anderson 1 for 24, in an important spell which arrested an otherwise quick start by New South Wales.

Queensland’s response was steady.  The over forty-fives batted high in the order, when the field could reasonably be expected to be up and the need for short singles slim.  The openers put on 42, of which Taylor scored 22.  Egan, showing how little he has lost since his heady days as an opener for the Valley’s first grade side, scored a quick 20, including (arguably) the shot of the day over deep mid-wicket for 6.  He was bowled next ball, manfully attempting the same shot again.  Johnstone held the middle order together with a well crafted and ultimately decisive 51, while Williams and McLeod chipped in with handy contributions in an unbeaten sixth wicket partnership of 31 to see Queensland home. Docker and Eastman were the pick of the New South Wales bowlers.  Still to bat for Queensland were Anderson, O’Regan and Porter, who surely could have (if necessary) mustered another 10 or so between them.  O’Regan made his debut in the game for the local Bar and is a player to watch for the future. 

So, a comfortable win to Queensland. 

As always, the teams met for dinner on Saturday night, when the New South Wales skipper exhorted his men to “feel the hurt, bottle it and save it for next year”.  

Roger N Traves S.C.

 

 

Renowned cineaste Roman Polanski’s decision to skip bail in the United States to avoid a jail term in 1978 after pleading guilty to unlawful intercourse with a 13-year old girl, and his arrest last month on an extradition warrant at the Zurich Film Festival, has yielded a melting pot of perspectives — political, generational, cultural and gender-based — largely obscuring the (possibly less exciting) legal issues that arise.

But what is at risk for Polanski now? What role does sentencing play in the context of the history of this case? And what would happen if, instead of molesting the victim in Jack Nicholson’s Jacuzzi, Polanski had been filming on the Gold Coast at the time? In the following article, Paula Morreau discusses these very questions.

Roman Polanski was originally indicted on rape, sodomy and drug charges but his plea of guilty to the lesser charge of unlawful sexual intercourse with a minor was part of a plea bargain.¹ The evidence at proceedings before the grand jury in 1977² reveals that Polanski had arranged to take photos of the complainant for an upcoming Vogue spread. He knew that she was 13 years old, albeit that she looked to be in her late teens. On the second shooting day, Polanski supplied her with champagne and the prescription drug Quaalude. She had tried it before. He had her undress and ultimately had vaginal and anal sex with her, despite her protest. She did not struggle and there was no violence. He drove her home afterwards. Her mother overheard her telling her boyfriend what had happened and contacted the police.

How does a 21^st century court sentence upon a 20^th century crime?

The offence to which Polanski pleaded guilty does not require proof of lack of consent or force.³ Californian case law from the 1970s⁴ and now⁵ show a range of penalties, from non-custodial to custodial orders of several years, depending upon the ages involved and whether there was consent or any violence or threats. At the time, correctional authorities recommended probation. But with the disparity of ages in Polanski’s case and the lack of consent, a non-custodial term for such an offence today would be unlikely.

In Queensland, the conduct in relation to which Polanski pleaded guilty is known as unlawful carnal knowledge. It only applies when the conduct is ‘consensual’. The sentencing range for a single offence of comparable nature now is in the realms of one to three years’ imprisonment.⁶ Factors affecting the range include the age of the complainant, the age disparity, any breach of a position of trust and the offender’s criminal history. In the 1970s, probation or releases on good behaviour bonds were often ordered.⁷

To a sentencing court in Queensland, because the delay was caused by Polanski’s flight, it would be difficult to conclude that this has caused him any relevant unfairness. Neither the stress of the pending proceedings (including being unable to attend the Oscars) nor any difficulties arising from his old age would provide reasons for leniency.⁸ However, the passage of time does give rise to some features of importance in the sentencing process now:

• He would be sentenced by reference to the maximum penalties that were in place at the time of the offence. Comparable sentences would be those imposed under the previous framework.⁹
• His conduct in fleeing the jurisdiction, whether in contempt of court or in breach of bail, could of itself potentially result in up to some months of imprisonment. This would be a cumulative penalty.¹⁰

• His conduct in the time since i.e. demonstrated rehabilitation, lack of further offending, and otherwise good character can be taken into account, particularly in terms of assessing ongoing risk to the community.¹¹ He is reportedly of otherwise good character: he has a tragic family history; he has made a significant contribution to the arts; and had not offended either before or apparently since.

The complainant’s attitude and the prosecution position

The sentencing judge ordered that Polanski be institutionalised for psychiatric assessment before sentence.¹² A plea bargain was reached that he be sentenced to time already served in the institution (42 days) in respect of the lesser charged offence. Despite this, the indication from the judge was that a jail term would be imposed, prompting Polanski to flee, rather than to invoke the appellate processes.¹³ Polanski’s victim felt his internment (and the extensive publicity he suffered) was sufficient penalty. She agreed to the lesser charge and does not wish to see him imprisoned.¹⁴ What relevance, if any, ought these features have to bear on the process?

In Queensland, there is little room to facilitate a victim’s wishes on penalty.¹⁵ It is considered of less relevance than the public interest in consistency in sentencing, particularly for domestic violence and sex offences, where the victim might be taken to be vulnerable to intimidation.¹⁶ This is, to a lesser extent perhaps, also the case in respect of the decision to prosecute. A complainant’s attitude is one of 20 factors relevant to assessing the public interest in prosecutions.¹⁷ With sexual offences there is a more recent trend to proceed against a victim’s wishes if the allegation is maintained as true due to the seriousness or risk of repeat offending.¹⁸ Indeed, it was recently reported that a woman was fined for failing to attend court in Central Queensland to give evidence about her rape complaint.¹⁹

The plea bargaining process in the US may alter this somewhat. Whilst not binding upon a court because it was not approved,²⁰ it was at the time a binding agreement between the parties (including the victim). In 2003, when The Pianist was in contention for an Oscar, prosecutors reportedly considered an offer for Polanski to return to face court under the former agreement.²¹ The complainant supported this. However, in defending the recent extradition proceedings, the Los Angeles County District Attorney’s office reiterated that the more serious charges remained pending.²² As to this, perhaps the documentary alleging misconduct by the DA’s office in originally prosecuting him and Polanski’s unsuccessful application to have the case dismissed in absentia earlier this year (now under appeal), were more than a little provocative.

The circumstances of the case are such that a penalty involving no custodial time was rationally open in the 1970s. But the reality is that Polanski is now facing significantly longer time in custody awaiting extradition proceedings²³ even before proceedings in the United States begin. The spectre of more serious offences and a hardened sentencing approach for this type of offending mean that whilst the complainant’s position has thus far not been determinative, she may yet be his greatest support in the processes to come.

Paula Morreau

Footnotes

1. To read the transcript of his plea: http://www.thesmokinggun.com/archive/years/2009/0928091polanskiplea1.html.
2. To read the complainant’s testimony: http://www.thesmokinggun.com/archive/years/2008/0610081polanski1.html. And the probation report: http://www.thesmokinggun.com/archive/years/2008/1203081roman1.html.
3. Section 261.5(d) Californian Penal Code; People v Johns, 173 Cal. App. 2d 38; People v Brown, 35 Cal. App. 3d 317.
4. E.g., see People v Arrendondo, 52 Cal. App. 3d 970; People v Creighton, 57 Cal. App. 3d 314.
5. E.g., see People v Garcia, 161 Cal. App. 4th 475; People v Manchel, 163 Cal. App. 4th 1108.
6. E.g., see R v C [2002] QCA 046; R v AS [2004] QCA 220; R v T; ex parte AG [2002] QCA 132.
7. E.g., see the criminal histories in Saunders v QCCB [2003] QSC 397 and AG v Murry [2007] QSC 121.
8. R v L; ex parte AG [1996] 2 Qd R 63 at 66; R v Phillips & Woolgrove [2008] QCA 284; R v NJ [2008] QCA 331.
9. R v McArdle [2004] QCA 7.
10. Bail Act 1980, s 3. For example, see R v Reti [1992] QCA 283; R v Hillier [2007] QCA 279.
11. Penalties & Sentences Act 1992, s 9(4)(a), (b), (g); R v C [2003] QCA 510; R v D’Arcy (2001) 122 A Crim R 268.
12. “A 90-Day Psychiatric Study for Roman Polanski”, Washington Post, 20.09.77. All Washington Post articles referred to can be viewed at: http://www.vachss.com/ mission/roman_polanski.html.
13. “Polanski Sentencing”, Washington Post, 15.02.78.
14. See the complainant’s 2003 article for the Los Angeles Times, “Judge the Movie, not the Man”, at http://www.latimes.com/news/nationworld/wire/la-oe-samantha-geimer23-2003feb23,0,4716430.story.
15. Seeking Justice: An Inquiry into how sexual offences are handled by the Queensland Criminal Justice System, Crime and Misconduct Commission, 2003, p 153.
16. R v Freestone [2009] QCA 290 at [24].
17. Director’s Guidelines, Office of the Director of Public Prosecutions, part 4(ii).
18. Responding to sexual assault: the way forward, Criminal Justice Sexual Offences Taskforce report, AG’s Department of New South Wales, 2005, p 14.
19. N Bita, “Woman fined after rape case no-show”, The Australian, 09.10.09, p7.
20. People v West (1970) 3 Cal. 3d 595. 604.
21. T O’Neil, “Oscars 2003: Did Roman Polanski miss his best shot at freedom?” Los Angeles Times, 02.10.09 http://goldderby.latimes.com/awards_goldderby/2009/10/roman-polanski-oscars-entertainment-news-article-story.html.
22. J Leonard “LA County District Attorney defends pursuit of Polanski case,” Los Angeles Times, 02.10.09 http://www. latimes.com/news/local/la-me-polanski2-2009oct02,0,5978736.story.
23. J Henley, Should Roman Polanski be above the law? Guardian UK, 28.09.09 http://www.guardian.co.uk/film/2009/sep/28/roman-polanski-french-government. 

 

Photo: Roman Polanski with Crystal Globe Image provided by Film Servis Festival Karlovy Vary

In 1973 Sir Bernard Sugarman addressed this topic in an Article in Volume 47 of the Australian Law Journal at page 39 et seq. One of the areas of special interest to him at that time was the response of the young male barristers whose hair was long in accordance with the trend. Sir Bernard said:

“It may perhaps be forecast, for instance, that when the generation of young men, who maintain with almost religious fervour their “right” to wear their hair as long as they please, begin to make their presence felt in the courts, the topic of wigs will have to be re-opened in order that it may become a matter for consideration whether they too should be made subject to the same rule as was applied in 1922 by the King’s Bench Judges (Darling and Horridge JJ dissenting) to women barristers namely that they were to wear barristers’ wigs “which should completely cover and conceal the hair”. It not, may not women’s lib reasonably complain of discrimination.”

 

The tradition of wearing special regalia (robes and wig) dates back to as early as 1600. The rationale is explained in a Consultation Paper provided by The House of Lords and issued by the Lord Chancellor which said that “Court dress was useful in disguising the judges and barristers from public recognition”. In assessing this “useful anonymity” it was suggested that “(w)igs and robes supposedly obscured differences of gender, race and age, creating an edifying sameness among all the participants. Under this assertion the judicial garb makes it more difficult for a criminal defendant to recognize and possibly seek revenge upon, any barrister or judge involved in prior court proceedings. The actual validity of this argument is unproven, but the judicial wig and robe do help to maintain the conformity of the opposing barristers as officers of the court and consequently reinforces their detachment from their lay client. Thus the barrister’s judicial garb portrays to the judge and jury a sense of indifference facilitating a more objective and honest setting in which to decide a case.”

 

Another view put forward from the same source was that “traditional judicial garb imbued in a lay person a sense of solemnity and dignity of the law. This was regarded as particularly useful in criminal trials, where respect for authority may be lacking. Traditional garb sends a powerful if not forthright message to all participants in a proceeding: “The panoply and especially the wigs, might seem a little ridiculous to foreign visitors but English people tend to be impressed rather than amused.” By setting a highly authoritative tone, the barristers’ attire commands a high level of professional respect for their  skilled advocacy and the proceedings.”

 

A Law Reform Commission paper in New South Wales in the 1980’s echoed similar sentiments. At 10.14 this passage appears:

“The Bar Association says that barristers ‘should be required to wear the same dress so as to avoid distraction as a means of reducing the personal quality which one counsel may have to the prejudice of his opponent. A good looking advocate should not have, thereby, an unconscious advantage. A wig serves to conceal what may be otherwise regarded as an unattractive or conversely an overly attractive feature. Gowns do the same to multi-farious clothing choice, covering the garish, the vulgar, the ill-taste and the superb raiment of a person of wealth and taste’ ”.

 

Paradoxically the commission at 10.26 reported:

“ … Moreover, the wearing of wigs can increase the likelihood of some witnesses being so overwhelmed by the formality and strangeness of court proceedings that the accuracy and comprehensibility of their testimony is impaired.”

 

In 1977, Sir Garfield Barwick, then Chief Justice of the High Court of Australia said:

“I think the day will come when wigs will go. That is a matter of time. I doubt whether the day will come when robes will go … I think there is value in at least the robe.”

 

Thirty-two years later his prediction, even in his own court, has not been fulfilled, and is no closer, in my view, to being fulfilled in the future.

 

That said, it is true the Association issued some directions as to the proper manner of wearing judicial garb. The rule about wearing a wig when walking to court is honoured in the breach, sadly, members, apparently, feeling embarrassed in wearing it in the street. I cannot see any cause for such feelings.

 

Members of the force, do not carry their hats, caps or whatever. Indeed, they are not properly dressed without headgear. The bar is in the same position.

 

More importantly, I think barristers should hide their hair as far as possible under their wigs. Some wear the wig popped on top of a mass of hair. That detracts, both from their appearance and from the effectiveness of court regalia. It looks decidedly odd.

 

So it is over to the members and the Association!

James Crowley QC

A true inspiration

QUT Law/Business student Leah Koger, is one inspirational young lady who, despite an unfortunate turn of events, is now over half way through her studies and her dream of a career in Law.

 

Leah, who has been on the Dean’s list (for high achieving students) and a member of the Golden Key International Society faced the prospect of not being able to afford university after her father had an accident which left him with brain damage. Her mother had to leave her job and care full-time for him.

 

With the family living on two pensions, university life seemed destined to be a hard slog for Leah, but winning a Commonwealth Scholarship in her first year and earning a bursary from the QUT Learning Potential Fund in the ensuing years have helped her out.

 

“Things were going to be pretty hard with my dad on a disability pension and my mum on a carer’s pension. Textbooks and the general costs that come with being a university student are expensive,” said Leah.

 

“The QUT Learning Potential Fund really helped with that, and even though I work as well as study, it is really helpful as I can manage the number of hours I work so I can spend more time studying. Also, when bills come up it reduces the worry and provides security.”

 

The perpetual QUT Learning Potential Fund provides funding for scholarships and bursaries to help students in financial need with the costs of text books, living expenses and helps them to reduce their hours of paid work.

 

Scholarships are valued at $2,500 and bursaries are valued at $1,000. The Fund is supported by generous donations from the community, alumni, staff and corporations and has a goal of raising a minimum of $20 million by 2015.

 

Leah gives her time back to help the QUT Learning Potential Fund and said she knew of a lot of students for whom studying would be a struggle without additional help.

 

“A lot of students who I have met through my work with the QUT Learning Potential Fund are in situations that make studying hard for them,” she said.

 

“They are really helped out by the money they receive — but I think there are a lot of students who could benefit from some help.”

 

“The QUT Learning Potential Fund is a great program, and just eases things for students when it comes to time management and finance.”

Unlike other scholarships across the University, the QUT Learning Potential Fund scholarships are awarded to students entirely on the basis of need. The prime objective of the Fund is to help students from all disciplines succeed in their studies, no matter what their personal circumstances.

 

If you are interested in finding out more about the Fund further information is available at www.giving.qut.edu.au.

 

For further information please contact:

Melissa Jeffreys

Senior Development Officer (Learning Potential Fund)

Telephone: (07) 3138 5357

Email: m.jeffreys@qut.edu.au

Web: www.giving.qut.edu.au

On 14 October 2009, Peter Davis SC gave the third presentation in the four part Bar Association of Queensland — James Cook University CPD Series. He spoke about appellate advocacy and gave invaluable tips such as not just reading a written statement of argument, but rather ensuring counsel serves as advocate; and also “thinking outside the box”.  On that latter topic, he conducted a study of the transcripts and judgment in the High Court of Australia’s Gypsy Jokers decision, where much of the novel argument of David Jackson QC was accepted by the court.

The BAQ-JCU series is immediately aimed at providing local practitioners with further face-to-face opportunities to undertake continuing professional development.  At a broader level, the series aims to strengthen the links between the Bar, the University and the Solicitors.

Earlier presentations in the series have been extremely successful also and have been given by John Baulch SC (where participants dealt with a series of ethical case studies); Tony Collins (speaking on criminal law); and Michael Fellows (who discussed family law and procedure). 

The presentations have been chaired by the Hon Justice Cullinane AO of the Supreme Court;  teh Hon Justice Montieff of the Family Court; and Professor Stephen Graw, the Head of JCU Law.

The fourth and final CPD took place on 4 November 2009 at th eSupreme Court in Townsville and featured JCU academics, Dr  Louise Floyd (speaking about recent workplace law developments) and Dr  Tom Middleton (talking about ASIC investigations).  It was chaired by His Honour Judge Durward of the District Court.