The following has been reproduced with the permission of Sky News Australia. For further information visit http://www.skynews.com.au/ .

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Law TV – 16 February 2011

 

The justice system has been long plagued by criticism of delays, prompting the NSW Local Court to launch a new system over the internet this week dubbed the Online Court. It allows some preliminary criminal matters to be case managed over the internet and to be alerted via email when there is a change. As NSW Attorney General John Hatzistergos tells Law TV, it’s a change designed to increase efficiency and save money.

Chris Merritt, Legal Editor at The Australian, with an update on the stories making waves in legal circles this week:

• Reports the Federal Government is looking to change the way it buys legal services from the big law firms
• NSW Industrial Court facing a structural overhaul pending any political changing-of-the-guard, with moves to eliminate what many believe is an anti-business bias.

 

View program 

 

 

 

Every practitioner is aware of the privilege that protects certain communications between themselves and their clients.

Most practitioners would be aware that, like many other government agencies, the Child Support Agency has the power to issue notices compelling production of documents and information, even from third parties to a child support assessment.

What is a solicitor obliged to do if a client has provided a bundle of documentation in relation to a child support query and the Child Support Agency serves Notice under s.120 of the Child Support (Assessment) Act compelling production of all material relevant to that Agency’s assessment process?

What is privileged? What isn’t? What prevails – legal professional privilege or the Child Support Agency notice?

This article aims to provide an answer to the questions posed above.

Legal Professional Privilege at common law

Legal professional privilege has been present for almost as long as common law has existed in the United Kingdom.

It has been described as “a privilege which has existed for many centuries and which has been recognized to be, and has been supported as being, in the public interest” (Gresson J in Commissioner of Inland Revenue v West-Walker (1954) NZLR 191, at p211).

In essence, the privilege is to the effect that “. . . communications made to and from a legal adviser for the purpose of obtaining legal advice and assistance are protected from disclosure in the course of legal proceedings, both during discovery and at the trial. . . . Any other communications as are reasonably necessary in order that the legal advice may be safely and sufficiently obtained are also protected, but in the case of communications to or from a non-professional agent or third party, such as a person who witnessed some event, the privilege only arises if litigation is threatened or contemplated.” (Deane J in Baker v Campbell (1983) 153 CLR 52 at page 117, see also Halsbury’s Laws of England (4th ed.), vol. 13, par. 71 ).

The modern form of the privilege is the privilege of the client (as opposed to the solicitor). That distinction becomes important when issues such as waiver are discussed below.

The rationale behind the doctrine is hardly surprising. A client is more likely to be frank with a lawyer if the client is not worried about what is said being repeated, whether that be voluntarily or under compulsion.

The relatively narrow scope of the privilege is, sometimes, surprising.

The privilege applies to communications only. The historical basis of the privilege lay in the notion that a client should be free to speak candidly with a solicitor and thus obtain the most informed legal opinion possible.

However, as solicitors and clients often need to communicate in writing, and as solicitors often keep contemporaneous notes of their advice, the privilege will extend to documents, in the sense that those documents are evidence of communications between solicitor and client.

It is the communication that is protected.

Legal professional privilege is, historically, a creature of common law. The common law privilege is, however, over-ridden in Commonwealth proceedings by the Commonwealth Evidence Act. That is discussed in more detail below.

Is the Privilege Confined to Judicial and Quasi-Judicial Proceedings?

Like so many things legal, there is no simple answer to the above question, nor has the answer remained static over time.

Of particular interest, from the point of view of this article, is whether or not communications between a client and a solicitor (or evidence of them) would have to be provided by that solicitor to the Child Support Agency if that Agency served a notice in proper form upon the solicitor.

The flow of cases discussed below, seem to identify two major areas of development in the common law privilege — first, the expansion of the operation of the privilege from just trials where evidence was to be adduced in court, and, second, the change in the test to be applied to determine whether or not communications are in fact privileged.

The common law test, historically, contemplated protecting communications made in the course of litigation or in contemplation of litigation.

What happens, though, if the Child Support Agency issues, for example, a Notice to Produce Documents under s.161 of the Child Support (Registration and Collection) Act when there is no litigation or contemplated litigation?

In Baker v Campbell, Gibbs CJ made the following observation (at page 60):

“ The principles relating to legal professional privilege were developed in relation to the giving of testimony and the production of documents in legal proceedings, and we have not been referred to any English or Australian case in which the privilege has been held to protect confidential communications between solicitor and client from production under a lawful requirement made otherwise than in the course of judicial or quasi-judicial proceedings. However, until quite recent times, it has been unnecessary for the courts to consider whether the privilege could have any application outside legal proceedings.

At common law there existed no power to compel a solicitor (or anyone else) to divulge information or produce documents, whether privileged or otherwise, except in legal proceedings, and no power to obtain a search warrant except to search for stolen goods, which would in any case not have been the subject of privilege. For many years after statutory powers were first conferred to grant search warrants, no question of privilege seems to have arisen, possibly because the nature of the things for which the warrant authorized a search to be made (such as things with which a crime was committed, or which were the fruits of a crime or evidence of the commission of a crime) made it unlikely that they would be found in a solicitor’s office. Perhaps because social conditions have changed, the question whether legal professional privilege was an answer to a warrant which authorized a search of a solicitor’s office arose for consideration in reported cases in England or Australia for the first time during the last decade.”

That observation helps place some of the earlier decisions into context.

It makes sense to think that the privilege, a creature of the common law and public policy, was created and developed in an environment where no government agencies existed, let alone had power to compel production of documents or information.

As such agencies came to exist, particularly in the last hundred years or so, it became necessary for the Courts to determine whether or not the privilege had to evolve as well.

Dominant Purpose versus Sole Purpose

In 1976, the majority of the High Court (Stephen, Mason and Murphy JJ) held, in the case of Grant v Downs (1976) 135 CLR 674 that a communication must be made “for the sole purpose” of giving or receiving legal advice on actual or anticipated legal proceedings to attract privilege.

It was later pointed out by the majority of the High Court in the case of Esso Australia Resources Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 that there was no actual debate over a “sole purpose” test versus a “dominant purpose” test in the matter of Grant v Downs.

Neither test was greatly relevant to the outcome of the decision Grant v Downs. In that particular case the reports in question were prepared for a number of purposes, only one of which was to seek legal advice. The purposes behind the creation of the reports wouldn’t have satisfied either a dominant purpose or a sole purpose test.

The law until Grant v Downs was, essentially, to the effect that if a document was prepared for multiple reasons, provided that one of those reasons was to seek or provide legal advice, then that was sufficient to attract privilege.

In the course of his judgment in Grant v Downs, Barwick CJ actually did consider the issue of a sole purpose test versus a dominant purpose test and he held that communications made “for the dominant purpose” of giving or receiving advice would attract legal professional privilege.

When the Commonwealth Evidence Act was passed in 1995, it adopted the “dominant purpose” test, probably in recognition of the fact that that was, by then, the test used in most common law jurisdictions at the time (United Kingdom, New Zealand, and most of the Canadian Provinces).

So, from 1995 when the Commonwealth Evidence Act came into effect, until 1999 when the case of Esso (discussed below) was decided, there were in fact two tests in Australia.

Any question of legal professional privilege being considered in the context of the Commonwealth Evidence Act was considered in terms of the dominant purpose test. Anything else was considered under the common law, and, therefore, in terms of the sole purpose test.

A differently comprised High Court held, (in the Esso case in 1999), that communications made “for the dominant purpose” of giving or receiving advice would indeed attract the privilege.

In a joint decision, Gleeson CJ, Gaudron and Gummow JJ paid considerable attention to the path via which the sole purpose test had established itself in Australian common law.

Their Honours made the observation referred to above that the majority in Grant v Downs were not even called upon to decide whether or not the sole purpose or dominant purpose was the correct test.

Their Honours then observed that over a great many cases in a number of jurisdictions, but notably in the United Kingdom and in New Zealand, Courts had found reason to criticize the sole purpose test as being unduly narrow.

In the end, their Honours held that the correct test to be applied in the common law of Australia was the dominant purpose test. They were joined in this view by Callinan J.

Thus, where the dominant purpose behind the creation of communications and documents is for the purpose of giving or receiving legal advice, then those communications (and any evidence of them) attract the operation of legal professional privilege at common law.

Client legal professional privilege under The Commonwealth Evidence Act (1995)

The Commonwealth Evidence Act sets out to create a uniform body of rules relating to evidence in Commonwealth proceedings.

As all would be aware, New South Wales and Victoria have both passed legislation mirroring the Commonwealth Act. There remains lively speculation with respect to what may happen in the other States.

At any rate, the Commonwealth Evidence Act certainly seems to preserve the notion of legal professional privilege.

Section 118 of the Evidence Act says as follows:

“Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

Section 119 then goes on to provide as follows:

“Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b) the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.”

“Confidential communication” is defined in s.117 in such a way that it could include, for example, accountants reports and the like provided that the report meets the dominant purpose test.

For a recent consideration of what constitutes a “confidential document” see Vasser v Taylor-Black [2010] FamCAFC 36.  

Prior to the 2008 amendments, the privilege did not extend to documents prepared by third parties.

In the context of a child support dispute, the category of documents not capable of being protected by privilege is large and includes pay slips, bank statements, share trading records, etc.

Though he did not concur with the decision to adopt the dominant purpose test in the Esso case, McHugh J nevertheless made some helpful observations in the course of his judgment. He observed:

“If the sole purpose of the communication is to obtain or give legal advice or assistance, privilege exists under Grant v Downs. If there was some other purpose for the communication , privilege does not exist. But it is the purpose of the communication that is decisive, not the purpose in making the document (for example, to have a record) or any copies of the document. If six copies of a communication are made because they may later be useful, they are all privileged if the communication was privileged. That is because they evidence a privileged communication. Thus, even an entry in a bill of costs may be privileged because it records a communication”

Given the nature of the Evidence Act, the sections referred to above only apply to actual or anticipated litigation.

Legal Professional Privilege at Common Law and Client Legal Privilege under the Evidence Act — Which one Applies When?

The Australian Law Reform Commission clearly was attracted to the idea of uniformity of rules of evidence across all Federal Courts when it wrote its report on evidence in 1988. (see paragraphs 21 to 26 of the report where such a conclusion was reached at an interim step in the report writing process)

Paragraph 57 of that report reads as follows:

“The Evidence Bill applies, subject to specified exceptions, in all proceedings in federal courts and in courts of the Territories. It applies whenever evidence is to be adduced, including in bail applications, interlocutory proceedings and proceedings heard not in open court but in chambers. It applies, not only in ordinary trials (whether civil or criminal) but also in matters such as bankruptcy proceedings. There are transitional clauses included to deal with hearings commenced but not concluded before the commencement of the Bill”.

As was observed in the Esso decision, the Australian Law Reform Commission expressly contemplated that the common law position would still apply whenever the Commonwealth Evidence Act did not.

The Commission also recognized that that meant that production of evidence of communications may very well be compellable outside the scope of federal proceedings, despite the fact that the same evidence would not be compellable in the course of proceedings.

The Commission observed that it was constrained by its terms of reference from investigation of such matters however adopted the view that such an anomaly was not unreasonable in any event. (see paragraph 199 of the report)

It would appear that not everyone agrees with that view however.

McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings [No 1] (1997) 41 NSWLR 277 described the abovementioned situation as anomalous and verging on the absurd.

His Honour was considering the applicability of privilege on subpoena. The Commonwealth Evidence Act applied in NSW.

His Honour held in that case that ss 118 and 119 did not apply to an ancillary process.

The practical consequence of that particular finding was remedied in the Esso decision, after which the dominant purpose test applied to both the common law privilege and the statutory privilege.

Can the Common Law Privilege be Set Aside?

If the Commonwealth Evidence Act does not extend to, for example, investigations undertaken by the CSA in the absence of any Court proceedings, the question becomes relevant — can the common law privilege be set aside by, for example the sections from the Registration and Collection Act, or the Assessment Act, referred to below.

The common law privilege can be set aside.

It is, perhaps, important to observe that legal professional privilege is not merely a rule of evidence. It is better described as a substantive right.

In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, a majority of the High Court held that legal professional privilege is a right that will not lightly be held to have been set aside.

In fact, the Court held that the privilege is such that it will only be held to have been abolished by a legislative instrument if the there is express language or clear and unmistakable implication to that effect.

Can the Privilege be Waived or Lost?

Both the common law and the statutory versions of the privilege can also be waived.

It is the client’s privilege to claim or to waive. Waiver can be express or by conduct. A solicitor can inadvertently waive privilege on the client’s behalf.

The statutory form of the privilege can be waived, for example, under s.122 of the Evidence Act via consensual provision of evidence of the communication.

Perhaps most notable within that section is ss.122(2). The privilege can be lost if the client or party has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of the kind that is ordinarily protected.

Sub-section 122(3) clarifies that such conduct can include disclosing the substance of such documents with the express or implied consent of the client or party.

Solicitors, from time to time, are want to make mention of what their counsel said in a written advice, in an attempt to reinforce the correctness of assertions made. The warning is be clear, be very careful not to inadvertently waive privilege when writing letters on behalf of your client.

The words “acting inconsistently” have been interpreted broadly, and can include making the contents of a document known to a third party unrelated to the subject dispute. (Mann v Carnell (1999) 201 CLR 1).

See Brennan v Shaw [2011] FamCAFC 11 for a recent example of a decision by a trial judge to compel production of a solicitor’s file, and to admit parts of that file into evidence on the basis that privilege was deemed to be waived. It took a Full Court Appeal for the wife in those proceedings to establish that the solicitor may not have necessarily been acting on instructions.

The Powers of the Child Support Agency

The Child Support Agency (“the CSA”) has, by any measure, an extraordinary range of powers and resources available to it to assist it in its tasks of assessing and collecting child support.

The CSA has in fact, a number of sources of power to compel the production of documents.

Looking first at the Child Support (Registration and Collection) Act (“the Registration and Collection Act”), it can be observed that the CSA has, prima facie, the power to compel persons to produce documents and information to the Agency in it’s efforts to discharge it’s duties under the scheme.

Section 120 provides as follows:

“(1) The Registrar may, for the purposes of this Act, by notice in writing, require a person:

(a) to furnish to the Registrar, within a reasonable period, and in a reasonable manner, specified in the notice, such information as the Registrar requires;

(b) to attend before the Registrar, or before an officer authorised by the Registrar for the purpose, at a reasonable time and place specified in the notice, and then and there answer questions; and

(c) to produce to the Registrar, at a reasonable time and place specified in the notice, any documents in the custody or under the control of the person.”

There is nothing in the Act that clarifies or otherwise narrows down the wide usage of the words “any documents”.

However, there is also nothing in the Registration and Collection Act that expressly excludes the operation of legal professional privilege.

Nor is there anything in that Act that could be said to create a clear and unmistakable implication that privilege should be excluded.

Section 161 of the Child Support (Assessment) Act is in more or less identical terms and nothing in that Act either expressly ousts legal professional privilege or could be said to create the clear and unmistakable implication referred to earlier.

So we find ourselves in that somewhat odd situation where, for example, in the course of enforcement proceedings the statutory form of the privilege will apply.

However if the Agency is pursuing an investigation absent proceedings, the common law form of the privilege applies.

It must be borne in mind that legal professional privilege, whether of the common law or statute created variety, only applies to documents created for the purposes of giving or receiving legal advice.

The privilege does not, for example, apply to documents that would otherwise be compellable in the hands of the client such as bank statements, contract documents, share transfer statements, etc.

The privilege would attach to things such as letters of advice, letters seeking advice, counsel’s opinion, and the like.

Conclusions

If the CSA attempts to compel production of documents there is, arguably a distinction to be drawn based upon the timing of such a request.

If the request is made in the absence of proceedings (such as enforcement or variation proceedings, for example), the common law version of legal professional privilege applies.

Consequently, third party documents such as reports prepared by accountants, for example, may not be protected by privilege.

If the request is made when proceedings are on foot, the provisions of the Commonwealth Evidence Act apply

Greg Shoebridge

The shifting of onus fallacy:

In many cases causation does not present a difficulty. That may be due, on occasions, more to oversight than reality.

In any case where breach of duty is proved, on account of an act or omission on the part of the defendant party involving a departure from reasonable care, causation between breach and injury often falls to be inferred, in reliance upon the well known passage in the reasons for  judgment of Dixon J in Betts v Whittingslowe³¹:

… breach coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach …

The issue taken up in the authorities is whether statements by McHugh J in Chappel v Hart³² and by Gaudron J in Bennett v Minister for Community Welfare³³ connote a shifting of the persuasive (as opposed to evidentiary) onus to the defendant once breach of duty to address a risk is proved, and that risk eventuated and caused harm.

The intermediate appellate authorities subsequently eschewed this construction of those judicial comments, identifying the character of the Betts principle as line of reasoning, which falls to be considered, among other facts, in a determination of whether the plaintiff has discharged the persuasive onus of proving causation.

Section 12 of the Civil Liability Act, when enacted, emasculated any real prospect of such  argument being sustained.  However the same proposition has been taken up and dealt with by the High Court, adversely to any shifting of persuasive onus.

In Roads and Traffic Authority v Royal³⁴, Kiefel J observed:

[144] The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Jones v Dunkel said that one “does not pass from the realm of conjecture into the realm of inference” unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam Pty Ltd v McGuiness, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. This enquiry is consistent with the commonsense approach required by March.

In Shire of Yakool v Walters³⁵ the trial judge found for the plaintiff child who fell from park playground equipment into a fall area which had a solid composition rather than a required  soft depth of 250 millimetres which would have cushioned the fall.  Upholding this decision, the Victorian Court of Appeal predicated that it was plainly insufficient for the plaintiff to prove simply that it was “possible” that the plaintiff’s injury was caused by the defendant’s breach, but went on to find that the plaintiff had done more than that.  Nettle JA observed:

[48] … Where a failure to warn results in a plaintiff adopting a course of action which exposes him or her to risk or increased risk of injury, and the risk occurs and he or she is injured, and it is probable that if warned he or she would not have adopted that course of action and hence would not have been injured, he or she is entitled to recover. But he or she is not entitled to recover if the connection between the failure to warn and the damage is so statistically improbable as not fairly to be attributable to the defendant’s omission to warn. In other words, as Spigelman CJ put it in Seltsam v McGuinness, when it is said that it is sufficient to establish that a breach of duty exposes a plaintiff to increased risk and that the risk eventuates, what is really meant is that the breach of duty has exposed the plaintiff to the increased risk and that the risk has eventuated because of the breach of duty.

A decision to similar effect, where the plaintiff succeeded, is Fitness First Australia Pty Ltd v Vittenberg.³⁶

Intervening causes:

The enquiry occasionally reaches a point where there is alleged break in the chain of causation, due to some act of the plaintiff or a third party,  that serving to deny a finding of causative liability. Proof of such break in causal nexus is usually difficult to establish, agitation often resulting in a finding of contributory negligence.

An example of an unsuccessful assertion of such a break, in circumstances of subsequent negligent causative harm by a treating medical practitioner, is Mahony v J Kruschich (Demolitions) Pty Ltd.³⁷

Examples of a break in the causal chain are:

• AMP General Insurance Limited v RTA (NSW),³⁸ where the deceased, injured in an accident, following a tense cross-examination upon the hearing of an application to extend the limitation period of his cause of action, suicided. It was found he psychiatrically decompensated, afresh, after the hearing. It was held, in a dependency action by the deceased’s spouse, that such suicide broke the chain of causation.

• Postnet Pty Ltd v Wood,³⁹ where a plaintiff entrant to a nightclub was injured when he fell after exiting through a window to an awning and then a nearby building, from which he then fell.

• Lyle v Soc,⁴⁰ where the deceased was injured in a minor motor vehicle accident and subsequently died after abusing and then over-dosing on prescribed pain relief medication.  The Queensland decision of Lisle v Brice⁴¹ was distinguished as the injury there arose from a motor collision of greater moment.

The break in the chain of causation is sometimes expressed to have its foundation in what is described as a “free deliberate and informed”⁴² act or decision of the plaintiff or a third party. The decision of the High Court in Medlin v State Government Insurance Commission⁴³  recites the jurisprudence in respect of establishing such a break in the causal nexus:

[6] For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience … And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the “but for” test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test … If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant’s wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. It will be seen that, on the plaintiff’s evidence, the present was such a case. 

[Footnotes deleted, emphasis added]

Three examples of disposition under the Medlin jurisprudence, with a result of causal nexus being proved, are Hirst v Nominal Defendant⁴⁴ (plaintiff police officer engaging in high speed chase), Blaxter v Commonwealth of Australia⁴⁵ (plaintiff engaging in disabling alcohol abuse due to psychiatric condition)  and Bonny Glen Pty Ltd v Country Energy⁴⁶ (see below).

In Bonny Glen a fire negligently caused by the defendant electrical authority destroyed a row of pine trees on a property adjacent to the plaintiff’s property. The row constituted a dedicated windbreak for spraying of the plaintiff’s commercial orchard, the spraying necessary to inhibit pest and weed infiltration. Pending regrowth of the windbreak, the plaintiff razed the orchard. It did so on expert advice. The defendant challenged causation of the economic consequence for orchard production on the footing that it was not foreseeable or reasonable. This argument was rejected:

[48] In addressing the question whether, as a matter of common sense, the breach of duty by Country Energy was a material cause of Bonny Glen’s loss, the following matters are relevant. The windbreak was plainly advantageous to Bonny Glen, in protecting the trees, creating a micro climate and in reducing problems associated with the use of poisonous sprays; so undoubtedly the destruction of the windbreak would create problems for Bonny Glen and be likely to cause damage to Bonny Glen. The breach of duty by Country Energy thus created a problem for Bonny Glen, and in those circumstances the standard of reasonableness for Bonny Glen’s conduct should not be set too high: see Banco de Portugal v Waterlow and Sons Limited [1932] UKHL 1; [1932] AC 452 at 506. On the other hand, it should not be set too low, and in assessing reasonableness it is necessary to have regard to the interests of Country Energy as well as the interests of Bonny Glen.

[49] … [Bonny Glen’s agent] sought expert advice, which was to the effect that, because of the risk of spray drift and the risk of the commission of an offence and prosecution, Bonny Glen should not spray in the area until the windbreak was re-established; and that it therefore should remove the trees. [Bonny Glen’s agent], because of the concerns of the neighbour, the risk of spray drift and commission of an offence and prosecution, and because of the expert advice, decided to remove the trees. It was not suggested to the experts that they did not hold their opinions or give them; and the expert called by Country Energy, Mr Gordon, accepted that the question whether to continue spraying was a matter of judgment.

[50] In my opinion, it is not necessary to find on the balance of probabilities that the expert advice was correct. It was not shown to be plainly unreasonable, or even to be incorrect. In my opinion, in those circumstances, Bonny Glen did prove that its conduct was reasonable, and reasonable having regard both to its own interests and the interest of Country Energy. Accordingly, in my opinion the economic loss resulting from the removal of the trees was caused by the fire and thus caused by Country Energy’s breach of duty.

[Emphasis added]

In  State Rail Authority of New South Wales v Chu⁴⁷  the plaintiff suffered a temporarily disabling ankle fracture in the subject accident for which the defendant was found liable. A question arose whether further injury of a psychiatric nature, resulting from a sexual assault perpetrated upon her while she was still disabled, ought be causatively visited on the defendant.

Matthews AJA (Hodgson and Bell JJA agreeing), over-ruling the trial judge, held in the negative:

…

[52] Dealing first with the issue of causation: the appellant submitted that the trial judge overstated the evidence linking the respondent’s injury with the subsequent sexual assault. It was not her lack of mobility which principally constrained her from leaving the assailant’s room, according to the evidence. Other factors were much more significant, particularly the presence downstairs of the assailant’s parents, and the fact that the assailant had taken her wallet and telephone and she did not want to leave without them.

[53] There is considerable strength in this submission. From a factual point of view there was little evidence to support his Honour’s finding on the causation issue. It was a matter which the respondent was required to prove, and in my view the preponderance of evidence was that the assault would probably have occurred whether or not she had been injured in the fall.

[55] The conduct of the respondent’s assailant was clearly a “free, deliberate and informed act.” It is questionable whether it was intended to exploit the respondent’s immobility. But it was certainly the type of conduct which would have broken the chain of causation.

The court indicated they would also have found against the plaintiff on the basis of remoteness of damage, any sexual assault not being reasonably foreseeable.

In Zanner v Zanner⁴⁸, referred to earlier, the plaintiff was the mother of the defendant.  She sustained serious injuries when struck by a motor vehicle being manoeuvred by the defendant in her direction into the carport of the family home.  The defendant was then aged 11 years and two months.  His foot slipped from the brake onto the accelerator causing the vehicle to surge forward and collide with the plaintiff who had placed herself and was standing directly in front of the vehicle.  He had successfully so manoeuvred the vehicle on about six prior occasions.

The trial judge found for the plaintiff but adjudicated contributory negligence to the extent of 50%.  The primary liability finding was upheld on appeal but the contributory negligence finding was overturned and amplified to 80%.

Allsop P wrote as to causation in that case:

[12] … This case does not demand any great agonising over the application of ss 5D(1)(b) and (4). All relevant considerations that inform the content of the appropriate scope of the negligent person’s liability and responsibility point to a positive conclusion as to causation and liability here. Injury to the mother was entirely foreseeable should negligence occur. The scope of the risk of harm protected by the duty and created by the breach included injury to the mother. The injury was not coincidental to the breach. It was the direct and immediate consequence of the negligence. The son in the car ran over his mother. The content of the duty and the attenuated standard of care were directed to the exercise of care to avoid injury to the mother in the very manner that occurred. There was no intervening act of a third party or of an abnormal event. The only other causal factor was the negligence of the person (the mother) to whom the duty was owed. There is no reason why the appropriate apportionment of respective responsibility is not best allocated through contributory negligence. Common sense would attribute the mother’s injury to the negligence of her son, as well as to her own negligence in putting herself in that position.

What this helpful analysis points up is the issue raised by Gummow and Hayne JJ in Travel Compensation Fund v Tambree⁴⁹:

[45] It is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked. As was recently emphasised in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, it is doubtful whether there is any “common sense” notion of causation which can provide a useful, still less universal, legal norm. There are, therefore, cases in which the answer to a question of causation will require examination of the purpose of a particular cause of action, or the nature and scope of the defendant’s obligation in the particular circumstances.

[46] In Allianz, McHugh J noted that considerations of legal policy may enter into the selection of those causative factors which are determinative of liability. However, to accept that proposition, as it should be, is not to adopt a quite different proposition that in any given case the ultimate issue is whether “the defendant ought to be held liable to pay damages for [the] harm [suffered]”. This approach to questions of causation taken by Ipp JA in Ruddock v Taylor was adopted by the Court of Appeal in the present case.

[Footnotes deleted, emphasis added]

Loss caused to a plaintiff by his or her own criminal activity, even if  wrought by accident induced circumstances including usually psychiatrically altered disposition, ordinarily founds a  severance of causal nexus.⁵⁰

The Lesson:

The above recitation of principle and case examples make plain, I submit, the fact sensitive character of the causation enquiry.

Causation requires preparation and treatment as much as any other litigation issue.

In construction and development of the case theory, each pleaded result of breach of obligation ought be addressed by reference to what case adduced and (proposed) cross-examination elicited evidence is apt, together with the intellectual argument by which causal nexus is to be advocated founded on such evidence.

Such argument ought be fashioned such as to appeal to the court’s “good sense of the thing”.  Elevating a possible link to one which is probable is as much a matter of commonsense based on life and legal experience as it is a matter of evidence.  The question is ultimately one of fact.

Intuitively the experienced practitioner knows when, in the above process, the Rubicon of probability has been crossed, and by corollary whether he or she is shy of the same. 

Conclusion:

The law is pragmatic when it comes to causation.

Historian AJP Taylor made such a point when he wrote about the causes of war:⁵¹

Wars are much like road accidents.  They have a general cause and particular causes at the same time.  Every road accident is caused, in the last resort, by the invention of the internal combustion engine and by men’s desire to get from one place to another.  In this sense, the ‘cure’ for road accidents is to forbid motor cars.  But a motorist, charged with dangerous driving, would be ill-advised if he pleaded the existence of motor cars as his sole defence.  The police and courts do not weigh profound causes.  They seek a specific cause for each accident — error on the part of the driver;  excessive speed; drunkenness;  faulty brakes;  bad road surface.

It is the particular causes that require attention in proving a link between breach of obligation and subsequent event yielding damage or loss.

In this paper I have attempted to explore  the limits to recovery of damages which the law imposes by the concept of causation, to recovery in common law causes of action. 

Another limiting concept also exists, namely that of remoteness of damage, but again that is beyond the scope of this paper.

It ought be borne steadily in mind that causation is a question of fact entailing, potentially,  “but for” and scope of liability considerations.   An exceptional case will behove drilling down into more philosophical considerations of whether and why liability for the harm ought be visited on the defendant.  These respective considerations have been taken up in Queensland in the Civil Liability Act and the Workers’ Compensation & Rehabilitation Act and must be considered in that order without conflation.

In adjudicating proof of causation, decided cases ought be referred to solely for the purposes of general  principle, not precedent for a particular outcome  merely because factual similarities exist.  Each new case is fact sensitive.

In science the mere flap of a butterfly wing may well produce a surprising natural outcome.  In the law, on occasions,  breach of duty of care might spawn a substantial and unusual damage outcome notwithstanding a raft of other circumstances combining to contribute to that outcome.

R J Douglas S.C.

Footnotes

31. (1945) 71 CLR 637
32. (1998) 195 CLR 232
33. (1992) 176 CLR 408
34. [2008] HCA 19;  see also Adeels Palace at [50] — [53]
35. [2005] VSCA 216
36. [2005] NSWCA 376
37. (1985) 156 CLR 522
38. (2001) 22 NSWCCR 247; Aust Torts Reports 81-619 (NSWCA)
39. [2002] ACTCA 5
40. [2008] WASCA 3
41. [2002] 2 QdR 168
42. Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 429-430
43. (1995) 182 CLR 1
44. [2005] 2 Qd R 133;
45. [2008] NSWCA 87
46. [2009] NSWCA 26
47. [2008] NSWCA 14
48. [2010] NSWCA 343
49. (2005) 224 CLR 627
50. State Rail Authority of  New South Wales v Wiegold (1991) 25 NSWLR 500;  Bailey v Nominal Defendant [2004] QCA 344
51. AJP Taylor “The Origins of the Second World War” (The Folio Society, 1998) at 115-116.  I am indebted to Mr Liam Kelly SC for this quote which is contained in a 2010 paper delivered by him in the BAQ/UQ Seminar Series, namely “Causation and s 82 of the Trade Practices Act” pg 18.

Introduction:

No. The conference organisers, when striking a title for this paper,  did not have in mind the 2004 psychological thriller film starring Ashton Kutcher.²  Or so I would like to think.

Rather the title is a reference to the purported  scientific discipline of chaos theory.   Sensitivity of initial conditions to minute variations is the essence of such theory.³

Although the origins of chaos theory lie with Henrie Poincaré in the 1880s, the modern progenitor of the theory was Edward Lorenz.  His interest ensued by happenstance by dint of his 1961 work on weather prediction.  Lorenz posited that minor changes in initial conditions may produce large changes in a longer term outcome.⁴

In a paper given by Lorenz in 1963 he observed: ⁵

One meteorologist remarked that if a theory were correct, one flap of a seagull’s wing would be enough to alter the course of the weather forever.

By the time of a 1972 meeting of the American Association for the Advancement of Sciences, the seagull had evolved into a butterfly.  The title of the talk there by Lorenz  was:⁶

Predictability:  does the flap of a butterfly’s wings in Brazil set off a tornado in Texas!

By now you might be thinking:  “Thanks for the science lesson Mr Douglas!  How is this going to assist me advise on or argue in respect of a cause of action at common law which raises a real question of causal nexus between breach of obligation and damage?”

My answer is this:

• the adjudication of causal nexus is fact sensitive, turning on the peculiar facts of each case and informed only sparingly by the similar facts of any decided case.

• an event of apparently little moment, on mature reflection, may found or preclude  such a nexus.

• in understanding this process, philosophy and logic can be  useful, but in truth commonsense judgment and legal experience are more potent tools in accurately predicting or striking an answer to the causation question.

My thesis in this paper is to make good these propositions by reference to the general law relating to duty (in contract and tort) to exercise reasonable care.

I do not address causation in statutory causes of action.  They are beyond the scope of this paper.⁷

The legal task:

The task for a plaintiff lawyer in any piece of litigation when treating the issue of causation is to construct, by evidence and argument,  a possible causal connection, and in turn elevate such connection to a probable cause.⁸

Conversely, the task for a defendant lawyer is to obviate or minimise such a construction or elevation.

In order to discharge such task in a given case careful attention ought be given to what evidence (by tender of evidence, and examination, and or cross-examination) ought be adduced.

The adducing of expert scientific evidence may assist the process, but in doing so lawyers ought not be slavish to scientific or philosophical disciplines.

As Mason CJ observed in March v E & M H Stramere Pty Ltd⁹:

In philosophy and science, the concept of causation is being developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences.   In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.

There are events which follow breach of duty which, considered ephemerally, seem  surprising outcomes to be causally connected therewith.  In respect of these instances the metaphors of a butterfly wing flap causing a tornado or ripple causing a tsunami may be generally apt, albeit somewhat far-fetched.

Expressed in legal terms the question is whether  the risk of damage or loss the subject of a contractual or tortious duty has subsequently materialised in some fashion such that a real, not speculative connection between duty breach and damage can be sensibly  forged.

The vogue negative method of expressing the requisite proof is this:  a defendant who in breach of obligation exposes a plaintiff to a risk of damage or loss will not be liable “unless the plaintiff can persuade the trier of fact that the risk came home”.¹⁰

The controlling features introduced by the (unwritten) common law, augmented by (written) statute law, consist in the law pertaining to causation and remoteness of damage respectively.

Remoteness of damage is beyond the scope of this paper.

Insofar as causation is concerned the issues which would arise for consideration are these:

• Legal not scientific proof.
• The post hoc ergo propter hoc fallacy.
• Probability not possibility.
• The shifting of onus fallacy.
• Intervening causes.

In order to address those matters I first need to identify the common law and statutory tests for causation.

Common law test:

The common law was well stated recently by Kiefel J in Tabet v Gett:¹¹

[111] The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.

[112] The “but for” test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test.  The resolution of the question of causation has been said  to involve the common sense idea of one matter being the cause of another. But it is also necessary to understand the purpose for making an inquiry about causation  and that may require value judgments and policy choices. 

[113] Once causation is proved to the general standard, the common law treats what is shown to have occurred as certain.  The purpose of proof at law, unlike science or philosophy, is to apportion legal responsibility.   That requires the courts, by a judgment, to “reduce to legal certainty questions to which no other conclusive answer can be given.”   The result of this approach is that when loss or damage is proved to have been caused by a defendant’s act or omission, a plaintiff recovers the entire loss (the “all or nothing” rule).

[Footnotes deleted, emphasis added]

Event A need only be a cause, not necessarily the cause of event B, albeit such candidate cause need be material:  Bonnington Castings Ltd v Wardlaw.¹²  In Medlin v State Government Insurance Commission¹³, the High Court wrote:

Statutory test:

Given my audience I will address only the relevant Queensland statutes although they are replicated interstate albeit outside the sphere of employment liability.

The statutory regime on causation apropos breach of duty requiring exercise of reasonable care is encapsulated in ss 11 and 12 of the Civil Liability Act 2003 (Qld).   These are  replicated, for work injuries on and from 1 July 2010, by ss 305D and 305E of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). 

Sections 11 and 12 of the Civil Liability Act provide:

In Adeels Palace v Moubarak¹⁴,  the High Court wrote about s 5D of the NSW Act, being the NSW analogue of s 11 of the Civil Liability Act, in the context of a plaintiff seriously assaulted by a fellow restaurant patron due to alleged poor restaurant security:

In Zanner v Zanner¹⁵, where the plaintiff mother stood in front of a vehicle being manoeuvred by her defendant son, it was observed in the New South Wales Court of Appeal apropos the NSW analogue of s 11 of the Civil Liability Act:

Legal not scientific proof:

In adjudicating the question of causation, a court will often have before it competing expert evidence expressing scientific opinion and  reasoning addressing causation of an event or outcome.

Legal proof and scientific proof are disparate concepts, albeit they may occasionally conjunct.  Proof sufficient for legal responsibility is on the balance of probabilities.  Proof of mere loss of a chance does not suffice:   Tabet v Gett.¹⁶

In Dobler v Halverson¹⁷ it was written:

See also State of New South Wales v Allen.¹⁸

The post hoc fallacy:

Post hoc ergo propter hoc (the translation from latin “after this, therefore because of this”) is a logical fallacy:

Since that event followed this one, that event must have been caused by this one.

The fallacy lies in arriving at a conclusion on causation based solely upon the order of events, and thereby failing to take into account other matters that might obviate that connection.

While the fallacy is not germane in a conventional physical injury case such as a motor vehicle accident causing immediate frank injury, it resonates in all other scenarios.  Particular damage may have only tenuous roots in the proven breach such that it might have occurred in any event.

Even in a conventional claim, the alleged consequential but discrete economic losses may have occurred in any event as due to independent causes.  More often this exemplified circumstance is addressed by finding of causation of economic loss but with consequent discounting for chance upon assessment of damages.¹⁹

The post hoc fallacy is well identified in the case law.  In Minh Lai Nguyen v Cosmopolitan Homes (NSW) Pty Ltd²⁰:

The issue there was whether electrical cables being laid on brick tiles was a cause of the fire that destroyed the plaintiff’s home.

A recent example of the application of principle in this regard is Roads and Traffic Authority v Royal.²¹  There the issue arose in the context of a plaintiff who sued another driver and a road traffic authority on account of negligence resulting in a collision injury.  It was plain the road authority breached its duty in respect of road design.  Many accidents had previously occurred at the same location probably spawned by the defect in design.  But a finding of causation, on the evidence, was eschewed by the High Court:

One of the modern seminal cases on this issue is Alexander v Cambridge Credit.²²  A long ignored but more recently referenced  analogy identified therein was rehearsed in the dissenting judge in that case, Mahoney JA:²³

A recent example of a case in which that dictum  was applied is Hay Property Consultants Pty Ltd v Victorian Securities Corporation Ltd.²⁴  There the plaintiff lender sued the defendant land valuer on account of a negligent valuation of certain properties.  Evidence was accepted to the effect that if the correct (lower) valuation had been given then the loan would not have been made by the lender.  Thus the properties would not have been taken as security. 

After the borrowers defaulted on loan repayments the lender  had obtained possession of the secured properties, but before it did so the properties were deliberately damaged by an unknown third party. This damage devalued the land to the extent of the lender’s loss on subsequent sale.

Finding against the plaintiff lender on causation on a number of bases,  the court observed:

[87] … although the lender would not have made the loan but for the valuers’ misrepresentations, the satisfaction of the “but for test” is not sufficient to establish that the loss was caused “by” the negligent conduct of the valuers. …

Probability not possibility:

Again, a plaintiff must prove, on the balance of probabilities, that the harm sustained was “caused or materially contributed to” by the defendant’s wrongful conduct:  Bonnington Castings Ltd v Wardlaw.²⁵

In Miller v Council of the Shire of Livingstone²⁶, McPherson JA expressed the legal position in a case in which breach of duty was proved but the causation of injury was not for sufficient proof by way of eye-witness or other evidence from which an adverse inference could be drawn: 

[4] It is not, however, enough to think up other competing hypotheses that are more or less favourable to the success of the plaintiff’s claim. No one can say that one of them is more probable than another because no one can say what in fact happened. The case is covered by what Lord Watson said in Wakelin v London & Southwestern Rye Co (1886) 12 App Cas 41, 47:

Mere allegation or proof that the company were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injury to somebody, but had no connection whatever with the injury for which redress is sought; and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury.

See also Fraser v Victorian Railway Commissioners (1990) 8 CLR 54, 59, 66. These decisions are old, but the principle has not changed. In the absence of evidence, speculation is not enough. It was necessary for the plaintiff to prove how or why he fell. Inference from proved facts will do, but not mere hypothesis. The circumstantial evidence in the present case does not support an inference that the plaintiff’s injuries resulted from the negligence of the defendants or either of them in installing or maintaining a fence that was too low rather than from some other cause that is inconsistent with negligence on their part.

[Emphasis added]

There the inference potentially open was  not just of the inebriated plaintiff in hours of darkness falling over the negligently low fence (in which event he would have proved causation) but equally that he sat on the fence or moved behind it to urinate (in which event causation would not be proved).  Each hypothesis was speculative.

Contrast, on similar  facts, the outcome in Jackson v Lithgow Shire Council²⁷.   The contrasting result does not bespeak error in the reasoning of one or other case but rather that, like the adjudication of breach of duty, each case is distinctly fact sensitive.

What in this context is meant by “balance of probabilities”?  While a seemingly trite proposition, guidance is afforded in the remarks of Mahoney JA in Jones v Sutherland Shire Council²⁸.

The first step, in a sense, involves simply an assessment of what is human experience: it is, or is not, a fact that human experience is so. But such an assessment is not made as a mathematical calculation. It involves other kinds of reasoning in judgments, the correctness of which cannot be demonstrated by mathematics or ordinary logic. Therefore, the subjective confidence which a person or a court will have in the correctness of the assessment may vary.

It is to this that, in my opinion, phrases such as ‘the balance of probabilities’ refer in respect of such an assessment.

In Amaca Pty Ltd v Ellis²⁹, an asbestos case where there was a competing candidate cause of  heavy smoking, the case for the plaintiff was founded upon epidemiological evidence.  The High Court was at pains to point out that the Bonnington Castings “jurisprudence” was distinguishable on the facts because the basic question for adjudication was whether asbestos was a cause at all:

[68] This description of the issue of causation in Bonnington Castings shows how different it is from the issue of causation in this case. The issue in Bonnington Castings was whether one source of an injurious substance contributed to a gradual accumulation of dust that resulted in disease. The issue here is whether one substance that can cause injury did cause injury. Or, to adopt and adapt what Starke J said in Adelaide Stevedoring Co Ltd v Forst, was Mr Cotton’s cancer “intimately connected with and contributed to” by his exposure to asbestos? Questions of material contribution arise only if a connection between Mr Cotton’s inhaling asbestos and his developing cancer was established. Knowing that inhaling asbestos can cause cancer does not entail that in this case it probably did. For the reasons given earlier, that inference was not to be drawn in this case. Questions of what is a material contribution do not arise.

…

[70] The answer to the question can be expressed in several different ways. All depend upon the basic and unpalatable fact that no scientific or medical examination can now say, with certainty, what caused Mr Cotton’s cancer or lung cancer in any other particular case. As explained at the outset of these reasons, despite this uncertainty, the courts must, and do, “reduce to legal certainty [a question] to which no other conclusive answer can be given”. The courts do that by asking whether it is more probable than not that X was a cause of Y. Saying only that exposure to asbestos may have been a cause of Mr Cotton’s cancer is not a sufficient basis for attributing legal responsibility. Observing that a small percentage of cases of cancer were probably caused by exposure to asbestos does not identify whether an individual is one of that group. And given the small size of the percentage, the observation does not, without more, support the drawing of an inference in a particular case. The paradox, if there be one, arises from the limits of knowledge about what causes cancer.

[Emphasis added]

In Jovanovski v Billbergia Pty Ltd³⁰ the plaintiff was injured when he slipped from a ladder on the back of a truck. He slipped because, unbeknown to him, grease had been smeared on the ladder steps. It was inferred that someone employed by the defendant, or another contractor had placed the grease there as a prank. There had been similar incidents of placement of grease on the plaintiff’s truck in the weeks leading up to the accident.

Breach of duty was found in relation to the absence of exercise of reasonable care by the defendant to minimise the prospect of grease being smeared on the truck, but causation was not proved. The case was decided under the Civil Liability Act 2002 (NSW) and reference was made to the analysis in the High Court decision of Adeels Palace, to which I made reference earlier.

Davies J went on to find that the circumstances of perpetration by the unknown third party precluded an inference of causation:

[79]  As in Adeels, there was no evidence in the present case to show that a warning coupled with a threat to the workforce would have prevented the grease smearing and the injury to Mr Jovanovski. All that is available is an inference that it might have deterred the perpetrator but it is equally able to be inferred that it would have caused the perpetrator to act with greater care not to be detected if, as seems likely, Mr Jovanovski was the clearly intended victim — there was no evidence of grease on other trucks.

…

[82]  More significantly, Adeels makes clear that where the issue of causation is governed by s 5D breaches such as those that I have found, cannot be regarded as a necessary condition of the occurrence of the harm for the purposes of s 5D(1). The matter can be put no higher than that the appropriate warning might have deterred or prevented the occurrence which caused the injury to the Plaintiff.

Continued …

Footnotes

1. Virgil “Georgics”, Book   No. 2, 1  490;  referred to in J Wilson “Inverting the pyramid” (Routledge, London, 2008, page 1)
2. Kutcher’s character routinely travels back in time so to alter positively the course of later events.   Ultimately he appreciates his endeavours end up harming him and those close to him.
3. Macquarie Dictionary (Fourth Edition, 2005) pg 249
4. J Gleick “Chaos:  Making a New Science” (Cardinal, London 1997) page 17.
5. E Lorenz “Deterministic Non-period Flow” (1963) Vol 20 Journal of Atmospheric Sciences at 131-141.
6. R Hilborn “Chaos in Non-Linear Dynamics” (Oxford University Press, 1994).
7. See, however, L Kelly SC “Causation and s 82 of the Trade Practices Act (Bar Association of Queensland/UQ Seminar Series, 2010)
8. As to which see Dahl v Grice [1981] VR 513 at 522-524
9. (1991) 171 CLR 506 at 509
10. Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 318
11. (2010) 240 CLR 537
12. [1956] AC 613; 
13. (1995) 182 CLR 1
14. (2009) 260 ALR 628; 84 ALJR 19; [2009] HCA 48
15. [2010] NSWCA 343
16. (2010) 240 CLR 537
17. [2007] NSWCA 335
18. [2000] NSWCA 50 per Priestley JA
19. Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 368
20. [2008] NSWCA 146
21. [2008] HCA 19
22. (1987) 9  NSWLR 310
23. at 333-334
24. [2010] VSCA 247
25. [1956] AC 613 at 620;  March at 514
26. [2003] QCA 29
27. [2008] NSWCA 312
28. [1979] 2 NSWLR 206 at 227
29. (2010) 240 CLR 111
30. [2010] NSWSC 211

Your Honours, Colleagues, Friends,

First, may I thank you, Justice McMeekein, for the honour you have paid me in inviting me to propose the toast to the law this evening. As many of you know, my attendance at the CQLA conference from time to time is something of a homecoming. I am, proudly, a Rocky Boy. Bringing my family “back home” is always a joy. An opportunity for them to experience the warmth of this great community.

In fact, in a little over a month’s time, it will be the 30th anniversary of the completion of my schooling at St Joseph’s Christian Brothers College, West Street. And, one week after that, it will be the 30th anniversary of an event which occurred only metres from where we are gathered tonight. An event which would play a major part in my, initial, perception of the practice of the law.

The event of which I speak is the bombing of two of the accommodation buildings at this resort, when it was then the yet to be completed and yet to be opened, Iwasaki Resort.

The bombing occurred at the conclusion of what would now be called “Schoolies” but which was then, somewhat less imaginatively, called “the Beach Week”.

When the bomb was detonated, it shook the ground and it could be felt where we were staying.

Like most young men who had recently completed senior, I arrived at the beach, staying not too far from here, with perhaps the faintest of hopes that there may be a moment during that week when the earth would move for me.

But I was thinking metaphorically, not literally.

I commenced articles, articled to John Shaw at Swanwick Murray & Roche, a few weeks later. My first week, it may even have been the first day, of my working life coincided with the arrest and appearance in the Rockhampton Magistrates Court of one John “Gunner” Guisman who had been charged with offences relating to the bombing. Mr Guisman had earned the soubriquet “Gunner”, as it would later be alleged, because he was always boasting, usually at the Railway or Club hotels in Yeppoon, that he was gunna’ do this or gunna’ do that. The particular boast that had made him a suspect in the investigation was, so it was alleged, that he was “gunna’ blow up the Jap”.

Many of you would recall that the building of the resort by Japanese interests, and matters concerning the title to the associated lands, had been highly controversial in the local community for some time. The Premier of the day had been a major supporter of the project. That had, perhaps, been reflected in the number of detectives who had been flown in from the South to find the bomber.

And so, in that first week, I walked along East Street, in 40 degree heat, to the Magistrates Court to find highly armed tactical response police securing the court. There were television crews with lights blazing and cameras rolling. There may even have been a chopper in the air.

There was no mistaking it — I had ticked the correct box on the QTAC form — the Law was the most exciting career on the planet. And Rocky was the place to practise it!

And this impression did not diminish in the ensuing months due to the continued activity that followed the bombing. Just before the commencement of the trial, I was playing tennis with Paul Braddy at his home. Paul was Mr Guisman’s solicitor. There was a call for Paul (on the house phone as it was still some 15 years from the advent of the mobile phone). He took the call and then explained to me that he would not be able to finish the set as a key witness, who until that time had been unable to be located, had suddenly been found. Paul had to meet with him immediately to take a statement. The excitement! This didn’t even happen to Perry Mason!

And then the trial itself.

I was there for its commencement, in the public gallery at the old Supreme Court, along with, so it seemed, half the population of Rockhampton. Ken McKenzie QC, later Crown Solicitor, Solicitor-General and Justice of the Supreme Court but who was then chief crown prosecutor, was leading the prosecution. Bob Greenwood was for the defence. The trial commenced with an application by Greenwood for bail for his client for the duration of the trial. If bail were to be granted, Greenwood said, Mr Guisman would not go near the Iwasaki land. The judge said that this was all very well, but that it was quite unhelpful as he had no understanding of where the land was, and thus where Mr Guisman undertook that he would not go.

With perfect timing, and to assist the judge in his understanding of these matters, Greenwood produced a copy of the map of the lands, which was a schedule to the Queensland International Tourist Centre Agreement Act 1978. It disclosed quite a tract of land, of which the resort itself was only a tiny part.

“That? All that?”; asked the judge.

“Yes”: answered Greenwood.

“Bail granted”: said the judge.

In the end, Mr Guisman was acquitted.

To a wide eyed 17 year old it seemed wonderful theatre. But, of course, it was not. It was so much more than that.

It was the resolution of the tension between, on the one hand, the right of the public to be protected from, and for the State to punish, criminal acts of violence (and have no doubt – in today’s parlance this bombing easily would fit the description of an act of terrorism) — and on the other hand a citizen’s right to liberty which is only to be removed after proof of the charge against him or her beyond reasonable doubt after a fair trial. It was the law in action.

May I briefly mention something of the local profession at that time? The Rockhampton Bar of that time proved to be a veritable departure lounge for judicial office. The resident crown prosecutor was Marshall Irwin, who was soon followed by Kerry O’Brien. The private Bar comprised Messrs Hall, Dodds, Jones, White, Britton — and the young athletic one, McMeekin. Every one of those gentleman would be appointed to either the District Court, or in the cases of Jones and McMeekin, the Supreme Court.

I always liked the young bloke McMeekin. Whenever you delivered a brief (and I mean the act of physically walking a brief around to his chambers — that was the extent of my authority) he was very friendly and welcoming. Always ready for a chat, sometimes a cup of tea over which we would discuss recent selections in the Australian rugby team. He agreed with me that Ella was to be preferred to McLean at 5/8th. He ticked all the boxes. He was truly a good bloke.

I would later discover, through my own professional need, that such charm and faux hospitality is extended by all at the bottom of the foodchain at the bar to even the most lowly of articled clerks in the hope that it may bring work.

Upon appointment to the judiciary, each of those gentlemen took an oath of office in which they swore to do equal justice to the poor and rich and discharge the duties of their office according to the law to the best of their  knowledge and ability without fear, favour or affection. These are not hollow words of mere ceremony. They are, in short form, the embodiment of our system of law.

Chief Justice, we the people of Queensland, are deeply indebted to you and grateful for your selfless service to us as a Justice of the Supreme Court for now in excess of a quarter of a century, the last 12 as our Chief Justice.

Justice McMeekin, Judge Britton, Magistrates Carroll and Press, Acting Magistrate Morrow, we are grateful to you for your administration of justice according to law in this region.

May I return then to another Central Judge, and another connection with Japan?

Mr Justice D M Campbell was Central Judge from the mid 1960’s to the early 1970’s (It was as his Honour’s first associate that Paul Braddy came to Rockhampton). But it is of a time prior to his becoming a judge that I wish to speak.

Like so many of his brother judges of that age, DM Campbell had served in the second world war. Upon the surrender of the Japanese in the Pacific, he was, because of his legal training, assigned duties as defence counsel for a number of Japanese officers and soldiers charged with war crimes. At the conclusion of one trial, the commanding officer of a number of soldiers with whom he was co-accused wrote the following letter of thanks to Campbell.
  

Campbell had done his duty. Not merely his duty to carry out the command of his orders, but his duty also to his clients – people who were so recently his enemies and who had been charged with atrocities against his comrades – and, ultimately, his duty to the law.

You see that Japanese officer, who was executed for his crimes, knew that he had been, as Mr Guisman many years later also would be, although to very different ends, the beneficiary of justice according to Law.

I can think of no finer exemplar to us all than this of the law which we are all happy, humbled and honoured to serve.

I give you a toast: To the law.

The Decision in Kirk

The relevant facts in Kirk were of short compass.  Kirk Group Holdings Pty Ltd (the company), owned a farm near Picton in New South Wales.  Mr Kirk was a director of that company, however, he did not take any active part in the running of the farm and had no farming experience.  The day to day operations of the farm were carried out by one Mr Palmer.  Mr Palmer was employed by the company as a farm manager.  He was experienced and very competent.  

There was for use on the farm an all terrain vehicle which had been purchased by the company in mid 1998.  Mr Palmer had recommended its purchase.  In March 2001, Mr Palmer was using the vehicle on the farm to deliver steel to some fencing contractors who were performing work there.  There was a formed road which led to the area where the tractors were working.  For reasons unknown, Mr Palmer took the vehicle off the formed road and down the side of a steep hill.  It was not necessary for him to do so.  When riding down the hill, the vehicle overturned and Mr Palmer was killed.  

Each of the company and Mr Kirk were charged with offences under sections 15 and 16 of the Occupational Health and Safety Act 1983 (NSW).  Section 15 imposed a duty on an employer to ensure the health, safety and welfare at work of all its employees.  Section 16 imposed a duty on employers to ensure that persons not in the employer’s employment were not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking  while those persons were at the employer’s place of work.  

Section 15(2) provided examples of what may amount to the contraventions of the general duty imposed by s.15(1) they included: the provision or maintenance of plant and systems of work that are safe and without risk to health; the making of arrangements for ensuring safety and the absence of risk to health in connection with the use, handling, storage or transport of plant and substances; the provision of such information, instructions, training and supervision as may be necessary to ensure the health and safety at work of the employees; the maintenance of any place of work under the employer’s control in a condition that was safe and without risk to health; and the provision of safe means of access to and egress from such places.

Mr Kirk came to be charged by operation of s.50 of the Occupational Health and Safety Act which attached liability upon directors for offences committed by corporations.  

Both the company and Mr Kirk were convicted of the offences with which they were charged in the Industrial Court of New South Wales.  They appealed, unsuccessfully, to a full bench of that Court. They then appealed to the Court of Criminal Appeal  of the Supreme Court and also sought orders for certiorari from the Court of Appeal to quash the convictions and the orders of the full bench. They were again unsuccessful.

Each of their appeals to the High Court of Australia was successful and their convictions were quashed.

In the High Court, it was held that it was incumbent upon a prosecutor  prosecuting offences under s.15 or 16 of the OH&S Act to identify within the charge laid the measures said not to have been taken by the employer which should have been taken, and which was the act or omission which constituted the offence of having contravened the duties imposed.²  This was because s.15 and 16 were only contravened upon an employer failing to take a particular measure.  This, the Court found, was evident from each of s.15(4) and 16(3) which referred to “the act or omission concerned” which “constituted a contravention”.³  

Furthermore, the Court found that the necessity for the statement of offence to identify the act or omission of the employer said to constitute the contravention was even more apparent when regard was had to the defences available under the Act.  Particularly, s.53(a) provided that it was a defence for the person charged to prove that it was not reasonably practicable for them to comply with the provision of the act the breach of which constituted the offence.⁴

The Court found that the statement of offences as particularised in the charge against each of the company and Mr Kirk, did not identify the measures that the Kirk company, as the employer, could have taken but did not take.  Those charges did not identify any act or omission which constituted a contravention of either s.15(1) or s.16(1).⁵

The Court found:

Section 53(a) did not require the employer to take all measures which would have guaranteed against the risk in question, but only the undertaking of those measures which were reasonably practicable.⁷

The relief sought by each of the company and Mr Kirk in the New South Wales Court of Appeal was an order for certiorari quashing their convictions.  Section 179 of the Industrial Relations Act 1996 (NSW) contained a privative clause which provided that a decision of the Industrial Court was “final and may not be appealed against, reviewed, quashed or called in question by any court or tribunal”.  An issue, therefore, was whether the effect of that privative clause was to oust the jurisdiction of the Court of Appeal to make an order for certiorari.  It was common ground between the parties when the matter was before the Court of Appeal that that Court could exercise its supervisory jurisdiction if there was jurisdictional error.⁸  The Court of Appeal found, however, that the errors which had been identified were not jurisdictional errors and thus refused relief.

In the course of the hearing of the appeal in the High Court a further issue of potential error was raised by the Court for the parties’ consideration.  That was that in the course of the company and Mr Kirk being jointly tried, Mr Kirk had been called to give evidence by the prosecution.  That course had been followed by agreement between the parties at the trial and no issue had been taken in respect of it in any of the intermediate appeals prior to the matter being raised by the High Court. 

Before the High Court, a distinction was sought to be drawn between the competence of Mr Kirk to give evidence in the prosecution against himself  (in respect of which it seems accepted that he was not competent) and his competence to give evidence against the company.

The High Court found that s.17(2) of the Evidence Act 1995 (NSW) which provided that the defendant was not competent to give evidence as a witness for the prosecution, could not be waived and, where the company and Mr Kirk were tried jointly, the distinction sought to be drawn was not available.⁹ 

The High Court found that each of the errors were jurisdictional errors and errors on the face of the record which required a grant of certiorari (subject to the application of privative provision).¹⁰ 

The Court found further that the privative clause in s.179 of the Industrial Relations Act did not, and could not, have effect in respect of decisions affected by jurisdictional error.  The basis of the Court’s finding in this regard, was that an attempt by the legislature to deprive a State Supreme Court of its supervisory jurisdiction would be to remove from the State Supreme Court one of its defining characteristics and was, as such, beyond the state legislative power.¹¹

Disclosure of an Alleged Act or Omission in the Statement of the Charge

It was the High Court’s ruling in Kirk that validity of a charge required the disclosure by the prosecution, within the charge, of the act or omission which it was alleged constituted the contravention of the duty imposed by the statute, which precipitated the immediate flurry of activity in respect of prosecutions then on foot.  In both New South Wales and Queensland a number of applications were made to Courts seeking to strike out prosecutions brought against various defendants because of alleged failure to adhere to this requirement as identified by the High Court. Attempts were also made to have convictions in concluded proceedings quashed.

In Queensland those attempts have been unsuccessful insofar as they have sought to have prosecutions struck out or permanently stayed. There has been more success though in having courts order some particularisation of the complaint.

Most particularly, in N K Collins Industries Pty Ltd v Twigg¹²  the President of the Industrial Court of Queensland dismissed an appeal against the conviction of a company for an offence of having contravened s.24(1) of the Workplace, Health and Safety Act 1995, for its failure to discharge an obligation imposed by s.28. The High Court’s decision in Kirk had been sought to be relied upon. 

In dismissing the appeal, the President of the Industrial Court determined that the statutory scheme under the Workplace, Health and Safety Act 1995 (Qld) was substantially different to that statutory scheme to be found in the Occupational Health and Safety Act 1983 (NSW).  His Honour found:   

“The difficulty lies in asserting that the Workplace, Health and Safety Act 1995 (The Act) and the Occupational Health and Safety Act 1983 (NSW) are analogous.  In the case where a person described in s.28(1) of the Act is killed or injured and it is asserted (a) that the person is not free from death or injury and (b) that the person was not free from the risk of death or injury, I am quite unable to see the analogy.”¹³ 

His Honour found that the analogous legislative scheme to that contained in the OH&S Act (NSW) was that which had formerly applied in Queensland under the repealed Workplace, Health and Safety Act 1989.  That Act, like the New South Wales provisions, imposed an obligation based upon practicability.  The scheme under the current WH&S Act is, his Honour found, quite different.¹⁴

His Honour had found that the complaint disclosed the legal elements of the offence charged and identified the essential factual ingredients of the offence.¹⁵  His Honour further found that the particulars in the complaint identified the relevant risk which was critical to either a defence under s.37(1)(b) of the Workplace Health and Safety Act or in a defendant establishing that it had discharged the obligation pursuant to s.26 of the act.¹⁶

In rejecting a submission that the prosecution should have particularised the measures not taken and the act or omission of the defendant, his Honour said:

The defendant to the original proceedings, the appellant before the Industrial Court, sought judicial review of the President’s decision.  In N K Collins Industries Pty Ltd v President of the Industrial Court of Queensland and Anor ¹⁷  Boddice J allowed the application finding that the President of the Industrial Court had committed jurisdictional error. 

Importantly, however, Boddice J found jurisdictional error only in that part of the President’s decision set out immediately above.  His Honour said:

Boddice J otherwise upheld the President’s construction of the Workplace Health & Safety Act 1995 and his Honour’s findings as to the distinction between the scheme imposed by that Act and that under the Occupational Health & Safety Act 1983 (NSW).¹⁹

In light of the judgment of Boddice J and N K Collins Industries, it is likely that defendants to Workplace Health & Safety prosecutions under the Workplace Health & Safety Act 1995 will seek orders for particulars of matters of the kind referred to in his Honour’s judgment.  Particularisation of the allegedly applicable code of practice may not take the matter very far, but “other measures (the prosecution) asserts ought to be taken” may do so.

Applications for such particulars, since the President’s earlier decision in Parr v NQEA Australia Pty Ltd²⁰, had been largely futile.  They may now, however, meet with more success. For example, on 15 December 2010, an Industrial Magistrate held, in Swift v Sunwater Limited and Swift v Trellborg Engineered Systems Australia Pty Ltd,²¹ that particulars of the “acts or omissions of” or the “measures not taken by” the defendants ought be provided. He did so particularly because of the multiplicity of hazards which had been mentioned in the particulars of the complaint which the prosecution had already provided.²²

Further observations may be made as to the potential for the broader reasons of the High Court in Kirk as to the necessity to identify within a charge the act or omission said to constitute the contravention to affect some aspects of Queensland health & safety law. 

The obligations imposed on operators of coal mines under s.41(1)(a) of the Coal Mining Safety and Health Act 1999, and operators of mines under s.38(1)(a) of the Mining and Quarrying Safety and Health Act 1999, are cast in different terms to that imposed by s.28(1) of the Workplace Health and Safety Act 1995.  Each of s.41(1)(a) of the CMSHA & s.38(1)(a) of the MQSHA require the operator to ensure that the risk to workers while at the mine is “at an acceptable level”.  Each Act provides that for risk to be at acceptable level, the operations must be carried out so that the level is risk from the operation is within acceptable limits and at low as reasonably achievable.²³ 

Similarly, in each instance, determination of whether risk is within acceptable limits and as low as reasonably achievable requires regard to be had to the likelihood of injury or illness to a person arising out of the risk and the severity of the injury or illness.²⁴  On the reasoning in Kirk & N K Collins, particularisation by the prosecution as to how risk was not at an acceptable level, through not being within acceptable limits and as low as reasonably achievable, would seem to be required and may also require the identification of particular acts or omissions on the part of the operator.

Jurisdictional Error

Whether an error committed by a Court or by a tribunal is a jurisdictional error or merely an error within jurisdiction is a distinction which is often particularly difficult to discern.²⁵   It is, however, a distinction which remains in Australian law.²⁶   In Kirk, it was observed that the distinction drawn by the Court in respect of jurisdictional error committed by courts on the one hand, and administrative tribunals on the other hand, on the basis that courts have the authority to decide questions of law authoritatively, was unhelpful. This was because, in the end, the “authoritative” decisions of inferior courts were simply those decisions which were not attended by jurisdictional error.²⁷  The circularity of reasoning is evident.

In Craig the Court had identified a number of ways in which an inferior court may commit jurisdictional error. These included misconstruction of a relevant statute thereby misapprehending the limits of its functions and powers. The Court emphasised in adopting the examples of jurisdictional error committed by inferior courts as set out in Craig, that these were examples and not “a rigid taxonomy of jurisdictional error”.²⁸ 

In Kirk, the Court found that the error of construction of s.15 of the Occupational Health & Safety Act was a jurisdictional error of the kind identified in Craig as a misconstruction of a relevant statute thereby misapprehending the limits of its functions and powers.  By its misconstruction, the Industrial Court had convicted each of the defendants of offences when what was alleged, and what was established, did not identify any offending conduct.29 

In N K Collins, Boddice J found that the President of the Industrial Court had erroneously held that there was no obligation on a complainant to particularise the measures not taken so as apprise a defendant of the case which it was to meet in preparing any defence. His Honour found that this constituted a misconstruction of the Workplace Health and Safety Act and a misconception of the extent of the Court’s powers in the particular case.  As such, his Honour found that the Industrial Court had fallen into jurisdictional error.³⁰

The High Court’s judgment in Kirk has, to adopt the expression used by the Court in the earlier decision of Aala, made it no easier to draw a “bright line” between jurisdictional error and error in the exercise of jurisdiction.  However, that lack of clear distinction suggests that, in light of the High Court’s reemphasis of the availability of review for jurisdictional error, cases will continue to be brought in which the characterisation of otherwise identified error would be of crucial importance.

Privative Clauses

In Re Hickman; Ex parte Fox and Clinton³¹, Dixon J formulated an approach which attempted to reconcile the apparent contradiction between the statute that, on one hand, stipulated legal constraints on a public body, while on the other hand, forbade the Court from policing those restraints.³²  In Kirk the High Court emphasized however that “the question presented by a privative provision is not just a conundrum of contrariety requiring a resolution of competing elements of the one legislative instrument”.

In Plaintiff 157/2002 v Commonwealth³³ the High Court had held that the Commonwealth Parliament could only constitutionally legislate to limit judicial review of Commonwealth decision makers to decisions not involving jurisdictional error.  Commonwealth legislation that purported to go further by ousting judicial review altogether, including decisions involving jurisdictional error, was thus unconstitutional and invalid.  This position is based on the express entrenchment on the High Court’s original judicial review jurisdiction in relation to Commonwealth officers conferred by s.75(v) of the Constitution.

In Kirk, the Court held that, in considering State legislation, it was necessary to take account of the requirement of Chapter III of the Constitution that there be a body fitting the description of “the Supreme Court of a State” and what was described as the constitutional corollary that it “is beyond the legislative power of a State so to alter the constitutional character of its Supreme Court that it ceases to meet the constitutional description”.³⁴ 

The Court found that the supervisory jurisdiction of the Supreme Courts has been, both at the time of and since federation, a defining characteristic of those Supreme Courts.

The unanimous decision of the High Court in Kirk is that judicial review in cases of jurisdictional error is constitutionally entrenched.  It means that State Parliaments can only constitutionally legislate to limit the power of judicial review of the State Supreme Courts in respect of  decisions not involving jurisdictional error.  State legislation that purports to oust all forms of judicial review, including of decisions involving jurisdictional error, is unconstitutional and invalid.³⁵

The privative clause in s.349 of the Industrial Relations Act 1999, unlike that in s.179 of the Industrial Relations Act 1996 (NSW) is, in terms, expressed to be limited to decisions of the Industrial Court made “within its jurisdiction”.  That such a privative clause would not extend to a decision which was affected by jurisdictional error had already been accepted in a number of cases.³⁶ However, other Queensland legislation contains privative clauses which purport to expressly apply to decisions including those affected by jurisdictional error.³⁷ 

In light of the High Court’s decision in Kirk, those privative clauses must now be considered to be beyond the legislative powers of the Queensland Parliament and thus, invalid.

Sandy Horneman-Wren S.C.

Footnotes

1. (2010)  239 CLR 531; [2010] HCA 1.
2. Kirk at [34].
3. Kirk at [12].
4. Kirk at [15].
5. Kirk at [28].
6. Kirk at [34].
7. Kirk at [18]. For reasons discussed below, this has proven to be a critical distinction between the scheme under the New South Wales legislation and that created by the Workplace Health and Safety Act 1995 (Qld).
8. Kirk v Industrial Relations Commission (NSW) (2008) 173 IR 465 at 471 [21]; Kirk at [48].
9. Kirk at [50]-[52].  Section 17(2) has an analogue in section 8 of the Evidence Act 1977 (Qld).
10. Kirk at [54]-[55].
11. Kirk at [99]-[100].
12. Industrial Court of Queensland No. C/2009/56, 27 April 2010.
13. Ibid at [21].
14. Ibid at [22]-[23].
15. Ibid at [17].
16. Ibid at [18].
17. [2010]  QSC 373.
18. [2010]  QSC 373 at [20]-[23].
19. Ibid at [14]-[16].
20. (2001) 167 QGIG 913.
21. Blackwater Industrial Magistrates Court matters No. MAG00231428/09(7) and No. 00231447/09(1).
22. It is to be noted that, on the basis of Kirk and N K Collins, his Honour upheld the validity of the complaints.
23. See s.29(1) Coal Mining Safety & Health Act 1999 and s.26(1) Mining & Quarrying Safety &     Health Act 1999.
24. See s. 29(2) Coal Mining Safety & Health Act 1999 and s.26(2) Mining & Quarrying Safety & Health Act 1999.
25. Craig v South Australia (1995) 184 CLR 163 at 178; Kirk at [72].
26. Re: refugee tribunal; Ex parte Aala [2000]  204 CLR 82 at [163].
27. Kirk at [69]-[70].
28. Kirk at [73].
29. Kirk at [74].
30. [2010] QSC373 at [28]-[29].
31. (1945)  70 CLR 598.
32. Ibid at 616; see also, Aronson & Dyer at paragraph [17.05].
33. [2003]  211 CLR 476.
34. Kirk at [96] citing Forge v Australian Securities and Investments Commission (2006)     228CLR45 [63].
35. Kirk at [91]-[100].
36. See Squires v President Industrial Court Queensland  [2002]  QSC 272; Carey v President     Industrial Court Queensland  [2004]  QC 8; AMACSU v Ergon Energy Corp Ltd [2005] QCA 351; Parker v President Industrial Court Queensland  [2010] 1 Qd R 255.
37. See sections 17, 66, 68, 70, and 71 of the Corrective Services Act 2006 (Qld).

QPILCH is involving its barrister members in the Service by re-enlisting members to the QPILCH Tribunal Representation Panel. QPILCH is grateful for the tremendous support from barrister members who have confirmed their interest in accepting direct briefs to assist in meritorious cases. Particular thanks go to Paula Morreau, Lisa Stewart, Justin Carter, Gerald Byrne and Brian Cronin who have taken on matters since the Service’s inception in January 2010.

The Service assists current and prospective parties in a number of areas within QCAT’s jurisdiction, including:

• Child protection and education;

• Anti-discrimination;

• Guardianship and administration;

• Right to information and information privacy;

• Manufactured homes;

• Residential tenancy;

• Retirement villages; and

• Appeals.

In the Service’s experience, many people involved in proceedings have limited knowledge and understanding of the law and administrative processes required for them to meaningfully assert their rights. This is where the Service can make a substantial difference, particularly in cases where there is also a power imbalance between parties.

Examples of work recently undertaken by the Service include:

• assisting an Iraqi doctor to have the Queensland Medical Board review its decision to not allow his registration. The client had left Iraq during the war, and spent some years in Jordan waiting for resettlement, having been recognised as a refugee by the UNHCR. The client’s volunteer work in Jordan was not initially recognised by the Board, but with the help of the Service, and QPILCH member barrister, Paula Morreau, the Board was convinced to change its decision and allow the client’s registration.

• assisting an elderly client to apply for a stay of QCAT decision to terminate the client’s tenancy and issue a warrant for possession for removal of the client from a property in which the client asserted an equitable interest. The stay was granted securing accommodation for the client while he pursues his appeal; and

• guiding a concerned client through the process of applying to QCAT to urgently consider her father’s capacity and to make an order appointing the Public Trustee as administrator and the Adult Guardian as guardian for her father, who was at significant risk of being financially exploited by new ‘friends’. QCAT decided the client’s father did not have capacity and the appointments were made.

The Service is funded through the Department of Justice’s LPITAF Grants Fund as a pilot project until 30 June 2011. QPILCH hopes to secure recurrent funding for the project and also obtain funding to expand the Self Representation Service to the Magistrates Court, which would provide an opportunity for solicitors and barristers to be involved in the recently expanded civil jurisdiction.

If you are interested in becoming a QPILCH member, signing up to the Tribunal Representation Panel, or would like further information about the Service, please contact Andrea de Smidt, Coordinator of the Service, on (07) 3846 6317.

As a group, 19 Inns East has existed, more or less unchanged, for the past 10 years. At the time of writing, its members comprised Sandy Horneman-Wren S.C., Colin Forrest S.C., James Linklater-Steele, Karen Carmody, Phil Looney and Greg Shoebridge. At the time of publishing, however, Forrest S.C. will have taken up his appointment as a judge of the Family Court of Australia, thus changing the makeup of the group (not to mention depriving it of its long serving secretary, Ly Bui, who he has ‘poached’ as his new associate).

Shoebridge joined the group in 2009 after another appointment from the group when John Hutton was appointed to the State Magistracy. The appointments of these members of chambers are the most recent in a series, over the years, of current or former members of the group. Those who have been appointed include Bernie Warnick, Peter Hilton, Colleen Moore, Richard Jones and Michael Hogan.

For 5 years the chambers have also been the home of both the Public Interest Monitor (Forrest S.C.) and the Deputy Public Interest Monitor (Carmody). Carmody is also a member of the practitioner panel of QCAT and a director of Barristers Services Pty Ltd (the commercial arm of the Queensland Bar).

For a period, the group was named “Jessie Street Chambers” in honour of the Australian suffragette and human rights advocate. The change of name some years ago was not intended to reflect any diminishing respect for the work of Jessie Street, but for the more pragmatic reason of having the mail delivered with accuracy.

The areas of practice most engaged in by current members of the group include family law, insolvency, taxation and employment/industrial law. This provides a useful bundle of skills and expertise amongst members of the group which may be drawn upon by other members for domestic, if not professional, purposes.

Outside of the law, members of 19 Inns East are involved in a variety of sporting, cultural and civic pursuits. However, Linklater-Steele’s breeding of freshwater crayfish, the management of worm farms, beekeeping and the practice of the ancient art of bonsai, make Forrest’s marathon running and extreme bush walking, Carmody’s skiing, Looney’s Latin dancing and Shoebridge’s (surprising) practice of martial arts seem positively mainstream. Horneman-Wren does nothing of interest.

 

Sandy Horneman-Wren S.C.

Qualifications: BBus(CQU); LLB (QUT)

First Call to Bar: 27/04/1993

Appointed Silk: 23/11/2009

Major Areas of Practice:

• Administrative
• Appellate
• Civil & Human Rights/ Discrimination
• Industrial/ Employment
• Inquests/ Commissions of Enquiry/ Statutory Tribunals
• Workers Compensation

 

James Linklater-Steele

First Call to Bar: 27/04/1993

Major Areas of Practice:

• Appellate
• Family Law

 

Karen Carmody

Qualifications: LLB (Bond); MBA (QUT); LLM (Qld); Grad Dip CSP

First Call to Bar: 18/04/1994

Major Areas of Practice:

• Banking
• Civil & Human Rights/ Discrimination
• Commercial
• Family Law
• Industrial/ Employment
• Transportation Law (Aviation/Maritime)

 

Philip Looney

Qualifications: BCom(Qld); BAB; CA 

First Call to Bar: 22/04/1996

Major Areas of Practice:

• Commercial
• Contract
• Family Law
• Insolvency
• Taxation

 

Gregory Shoebridge

Qualifications: LLB; LLM; BBus

First Call to Bar: 23/12/2008

Major Areas of Practice:

• Alternative Dispute Resolution (Arbitration/Mediation/Evaluation)
• Equity
• Family Law
• Wills/ Probate and Family Provision

 

Colin Forrest S.C. 

Until recently the chambers group included Colin Forrest S.C. who was sworn in as a Judge of the Family Court on 2 February 2011.

Qualifications: BA LLB

First Call to Bar: 29/01/1990

Appointed Silk: 22/11/2010

The following has been prepared by Damien Carrick and reproduced with the permission of ABC Radio National.

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Listen

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The Trial Of Leon Borthwick: Part 3                                                                           

8 February 2011

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The Trial Of Leon Borthwick: Part 2                                                                           

1 February 2011

 Listen

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The Trial Of Leon Borthwick: Part 1                                                                           

25 January 2011

On 16 November 2008, teenager Mark Zimmer was run over by Leon Borthwick. Mark died at the scene and Leon was charged with murder. Two years later, Leon was sentenced to seven and a half years for manslaughter.

This week on The Law Report, the first of a three-part series, made over almost two years, which follows the harrowing murder trial process from the perspectives of both the grieving Zimmer family and the prosecution team.

Listen

 

The Australian Bar Association (ABA) and Queensland judges have donated Taka 21,84,477 to the Underprivileged Children’s Educational Programs (UCEP). The cheque was handed over to Brigadier General Ahmad Executive Director of UCEP last Monday during a reception held for ABA members at the Australian High Commissioner’s residence. Eminent lawyers, judges and Bangladesh Bar Council members were also present at the occasion.

The funds were raised primarily by the Queensland Bar Association from members of the Association and the Queensland Judiciary. This is the fifth time the ABA has donated funds to UCEP, with a total of Taka 88,09,538 (approx A$128,983) donated to date.

The Australian High Commissioner to Bangladesh Dr. Justin Lee thanked the Australian Bar members saying, “Not only have they devoted their time voluntarily to conduct specialist training, but they have also taken an interest in the wider community and continue to support underprivileged children who may otherwise never get the chance to receive formal education”. He also lauded UCEP for helping underprivileged working children gain an education to become self-reliant.

Dan O’Gorman SC, on behalf of the ABA said he was very pleased to be able to assist the important work being undertaken by UCEP. Brigadier General Ahmad of UCEP reciprocated by thanking Australian Bar Association members and their associates for their continuing generous support for improving the lives of vulnerable Bangladeshi children. “The donation will go a long way in improving the lives of these children,” he added.

ABA members and justices visit Dhaka every year to conduct a ten day long Intensive Trial Advocacy Workshop for improving the strength, independence and influence of Bangladeshi barristers and advocates practising in the courts. All of the members involved in the training program volunteer their time to conduct the workshop which has been held annually in Bangladesh since 1996 with support from the Australian Government in recent years.