Supreme Court Library Queensland (SCLQ) is pleased to host the annual Selden Society lecture series.

The 2017 program comprises five engaging lectures from high calibre speakers:

• Lecture one: Justices of US Supreme Court — Chief Justice John Marshall and the establishment of judicial review, presented by the Hon Justice John Bond
• Watch the recording of lecture one on the SCLQ YouTube channel
• Lecture two: Leading cases of the common law — McKenzie v McKenzie [1971] P 33, presented by Ian Hanger AM QC, Thursday 22 June
• Registration now open — register online
• Lecture three: Justices of the High Court of Australia — Justice Mary Gaudron, presented by the Hon Justice Roslyn Atkinson AO, Thursday 24 August
• Lecture four: Notable trials — The trials of Oscar Wilde, presented by the Hon Alan Wilson QC, Thursday 19 October
• Lecture five: Inaugural Lord Atkin lecture, presented by the Hon Susan Kiefel AC, Chief Justice of Australia, Tuesday 28 November

Online self-registration will be available the month prior to each lecture — please bring your ticket to each event for quick check-in. For more information, visit legalheritage.sclqld.org.au/2017-lecture-series.

During the last four years there has been great support for the lecture series from the Queensland judiciary, legal profession and law schools resulting in high attendance at each lecture, with many more viewing the lectures via live streaming in regional Queensland and on the SCLQ YouTube channel.

If you are interested in joining the Selden Society or renewing your existing membership, please visit legalheritage.sclqld.org.au/join-selden.

 

Photo: John Selden, after Unknown artist, Oil on canvas, 17th century? 749mm x 629mm, Purchased, 1859, National Portrait Gallery (NPG 76)

By the Honourable Justice Henry

The plaintiff’s lawyer and the prosecutor share the same role at trial — proving their case persuasively.  The legal issues vary.  The standard of proof varies.  But when it comes to proving a case persuasively, the core principles to be followed and skills to be deployed as between the civil and criminal jurisdictions are not materially different.  Our focus this evening is upon those principles and skills.

We will discuss them in two parts.  In part A we will canvass three overlapping rules  to guide your mindset and approach to the persuasive proof of your case.  They are: (1) be sure of your case’s foundations; (2) exercise control of your case; and (3) remember your audience.  In discussing those rules we will traverse various advice about the preparation and presentation of your case.  In part B I will discuss some remaining advice about the presentation of evidence in your case in court.  

Our interest will be on improving the persuasiveness with which the advocate appearing for the plaintiff or prosecution, whether barrister or solicitor advocate, proves the case.  The stage of the trial with which we are concerned is the proof stage of the case for the plaintiff or prosecution.  That is, the phase of the trial after the opening and up to the closing of the case for the plaintiff or the prosecution when the case is being proved by evidence.  This focus is not to suggest opportunities to improve the persuasiveness of the plaintiff’s or prosecution’s case do not sometimes arise in cross-examination during the defence case.  They do, and you should not overlook such opportunities, but they are not our focus tonight. 

Laypersons might find the proof stage a curious target for a session dealing with persuasion.  They might think the speech-making part of the case – the opening and more particularly the closing – is when the lawyer seeking to prove the case engages in the art of persuasion.  This overlooks the reality that the entire trial, not just the speeches, provides a platform for persuading the decision-maker of the merits of the case for the plaintiff or prosecution.  

Part A: The three rules

The presentation of the plaintiff’s or prosecution’s case has many elements in common with the staging of a play.  It is a major production calculated at pleasing its audience.  Who is its audience?  It is not the public gallery; it is the judge or jury.  Like a play, the presentation of the plaintiff’s or prosecution’s case requires preparation.  Like a play, it requires you to remember you and your cast are performing for an audience and to prepare your entire cast for that audience.  Like a play it has a plot involving some key elements upon which its potential success is founded. 

This heralds the first of the three rules I will emphasise tonight: be sure of your case’s foundations.

Be sure of your case’s foundations

One of the greatest threats to the persuasive proof of the plaintiff’s or prosecution’s case is that it has been built on weak legal or factual foundations or if those foundations do not align.

Legal and factual symmetry

Knowing what evidence you need to gather for trial turns upon what case you intend to try to prove at trial.  However, the case you intend to try to prove at trial turns upon what evidence you will be in a position to adduce at trial.  This cyclical connection between the legal and the factual foundations of your case requires that symmetry be maintained between the two of them in order for your case to succeed.  There is little point in having highly persuasive evidence if the case it proves is not the case which has been pleaded or charged.  

If the facts are not apt to support the pleaded or charged case, then you need to gather more facts or face reality and alter the nature of your pleaded or charged case.  

Build on the facts beyond doubt

In settling the pleaded claim or the charge — the legal foundation of your case — you should obviously have regard to the available evidence, such as it is.  In so doing, try to identify from that evidence the facts which appear to be beyond doubt.  Where there are facts beyond doubt which are favourable to your cause, then ideally it is those facts around which you should build your case.  They are the facts which will provide a solid foundation for your case. 

Amend the claim or charge if needs be

The dilemma of course is that when pleadings or charges are first placed before a court, the evidence-gathering process is seldom complete.  After that point in time, as more witness statements or addendum statements are gathered and more potential exhibits are located, some of the earlier identified facts beyond doubt may no longer look so unassailable and other facts beyond doubt may emerge.  In short, it may become apparent that your claim and or the pleadings, or the charges and or their particulars need to be substituted or amended.  If so, it is better that you take prompt steps to do so.  The longer you delay and the closer the trial gets the more your prospects of being given leave to do so without sanction or at all will diminish. 

Be conscious of foundation during presentation

The importance of being conscious of your case’s foundations continues into the presentation of your case.  Once the trial is underway it is very difficult to amend your pleaded case or charge.  Even if you succeed in doing so the fact the change was needed may undermine the persuasive momentum of your case in the eyes of your audience. 

At trial you must prove the facts which prove the elements of your pleaded or charged case.  This is fundamental.  Remember though that the object is not just to prove those facts.  It is to do so persuasively.  There was something about those facts which caused you to perceive them as the facts beyond doubt when you prepared for trial.  Make sure in presenting the evidence at trial that you adduce the evidentiary detail which gave them that perceived quality.

It is inherent in much of what I have already said that as the advocate for the plaintiff or prosecution you enjoy an advantage which the defence advocate does not have.   You fix the parameters for the contest in court.  You control the selection of the foundations upon which the case will be fought.  That power of control confers an enormous advantage, if exercised.

Exercise control of your case

This brings us to the second rule guiding the persuasive proof of your case: exercise control of your case. 

Value adding

The advocate’s role is not just to prove the case and hence survive a no-case submission.  It is to prove the case persuasively and hence give that case its best prospect of success.  The advocate cannot fulfil that role just by turning up to trial and “rolling the arm over”, mindlessly presenting whatever evidence has come to hand.  Such an approach assumes, wrongly, that the advocate has no contribution to make in improving the state of the case to be presented.

If you are the advocate in the case the premise of your engagement is that you will value add.  Your obligation is to apply your expertise and learning so that you will have done your professional best to improve your case’s prospects of success. That obligation derives not merely from your role as a professional.  It derives from your oath or affirmation on the occasion of your admission as a legal practitioner of our court.  That promise is that you will conduct yourself as a lawyer of this court to the “best” of your knowledge and ability. 

You are the lawyer who will be presenting the case in court.  It is your professional reputation at stake.  It is you who will and should feel professional opprobrium if you do not see to it that your case is given its best prospect of succeeding.  Ultimately, whether you are briefed by another lawyer or acting as a solicitor advocate, the fact that you will advocate the case dictates you must exercise control over the presentation of your case.  To do so it is unavoidable that you must also exercise control, even if it is shared control, of your case’s preparation …  continued

Click here to read entire article.

By Dr Norman Katter 

The oft cited dictum of Lord Macmillan in Donoghue v Stevenson that ‘the categories of negligence are never closed [1] resonates in the varied circumstances in which pure economic loss can result at one or more removes from the direct effect or detriment of negligent acts or omissions. This relational or secondary economic loss is no less damaging to a party simply because it was not caused directly, but indirectly by the defendant’s negligence.

Both the number of those incurring relational or secondary economic loss (hereinafter referred to as relational loss) and the quantum of that loss can be vast. Negligent damage to public utilities [2] such as power lines, water or gas or infrastructure such as bridges [3] can generate widespread financial losses to commerce and industry. The negligent spillage of toxic substances such as oil into the ocean can cause extensive financial loss for example to the fishing industry with a ripple effect on businesses in the area. [4]

Negligently caused damage to cargo ships or wharves can cause significant financial loss to the cargo owner or in the case of damaged wharves loss to the shipowner or charterer who cannot unload. [5]

Negligent acts or omissions can cause interference with collateral commercial arrangements thereby generating relational economic loss. For instance, where a company has contracted to supply medical services under a life-care contract with X, that contract becoming more onerous and costly as a result of the defendant injuring X; [6] or a defendant negligently causing the escape of water into the premises of a manufacturer who consequently could not supply under an existing contract, goods to a third party retailer with resultant economic loss to the retailer. [7]

The “disappointed legatee” cases [8] involving professional negligence by solicitors under their solicitor/ client contract with resulting financial loss to a third party beneficiary whose legacy fails, highlights the varied circumstances that produce relational economic loss. The High Court of Australia as recently as 2016 has revisited the “disappointed legatee” situation. [9] As well, the High Court of Australia in Barclay v Penberthy [10] was presented with a situation involving relational loss to a company whose key employees were either killed or seriously injured in a negligently caused plane crash.

This is not to suggest that the above categories of relational economic loss are exhaustive. No doubt new and differing factual situations involving relational loss to third parties will come before the courts.

The fundamental tension for courts in cases of relational economic loss is between doing justice to a claimant whose economic loss has been caused through a wrong (delict) of the defendant, and the exposure of a defendant tortfeasor to claims far outweighing the wrong done. As earlier stated, the potential for purely economic loss to occur at one or more removes from the direct effect of a negligent act or omission (the ripple effect) raises ‘floodgate’ concerns of indeterminate liability.

One response to this tension is an approach which provides certainty such as an exclusionary rule denying any recovery for purely economic loss. Another response is to seek a middle course, by not denying recovery altogether, but to examine a range of policy issues or ‘salient features’ in discrete categories that restrict those who can recover their purely economic loss. This latter response is highlighted in cases before the courts of Canada, [11] New Zealand, [12] Australia [13] and the United States. [14]

This latter middle course relies on deductive reasoning from precedents and while not providing certainty, does provide to legal advisers a degree of predictability as to the outcome of relational loss claims.

This article suggests that case law on relational loss claims fall within discrete categories and within those categories there are limited circumstances in which the courts will allow recovery for relational loss. Those circumstances involve policy choices and facilitate recovery of loss by a limited range of parties having a special relationship to the person or thing directly affected by the defendant’s negligence. These policy issues and the special relationship just mentioned are discussed below.

It is suggested that by categorising a potential relational loss claim into a discrete category and then analysing case law within that category, legal advisers can predict a likely outcome.

Policy Issues in Relational Economic Loss Claims

Indeterminate Liability

In those cases in the United States, [15] Canada, [16] Australia [17] and New Zealand [18] where relational economic loss has been recovered, the defendant knew or ought to have known in each instance, of a specific individual or limited class of individuals who would likely suffer relational economic loss as a result of the negligence.

The corollary of this is that in those instances where the defendant could not reasonably have foreseen relational economic loss to any specific individual or limited class but only to an unascertained or indeterminate number of persons and the plaintiff was a member of that unascertained class, then the claim has been rejected.

As Buckley LJ stated in SCM (United Kingdom) v Whittall & Son Ltd with respect to negligently damaged public utilities causing relational economic loss:

‘It may be that if for example, an electric generating station or main cable or a principal water main serving a large number of consumers over a wide area were put out of action by the negligent act of someone who enjoyed no statutory immunity, the court might, on the facts of that case, properly reach the conclusion that no claimant for damages could successfully assert that the offender ought to have had him in contemplation as a person to whom he owed a duty of care. On the other hand, and by way of contrast, where, the damaged cable supplied only one establishment, I see no reason for excluding a duty of care merely because, what has caused the damage has been an interference with an electrical supply’ [19]

Tipping J in Mainguard Packaging Ltd v Hilton Haulage Ltd [20] went even further with respect to negligently damaged public utilities, stating that it was sufficient for recovery of relational loss if the defendant ought to have appreciated from the geography of the area, the location of the cable and the plaintiff’s physical proximity to the cable, that the plaintiff was one of a class of persons in the general vicinity of the power cable who might well be directly affected if the defendant damaged the cable

The plaintiff’s obvious (obvious to the defendant) close relationship to the property or the person damaged or injured by the defendant’s negligence has underpinned those cases in which the plaintiff has recovered the relational loss. This close relationship between plaintiff and third party whose person or property has been damaged by the defendant’s negligence, has been labelled under phrases such as “common or joint adventure”, [21] “known plaintiff”, [22] “limited class of individuals” [23] and “closeness of causal relationship”. [24]

In the instance of a breach of the professional/ client contract by a negligent act or omission of a solicitor causing a will to fail with resultant economic loss to the disappointed beneficiary, the latter has been referred to as the “designated beneficiary” [25] or “identified third party”. [26]

The joint adventure of cargo owner and shipowner, the known use of a damaged bridge by a plaintiff train company under a licence agreement, the specific individual (known plaintiff) whose oil terminal is connected to the damaged pipe through which its oil flows, and where a limited number of individuals in the geographic vicinity of a damaged electric cable would obviously be affected, are all examples of a close and obvious relationship between plaintiff and the third party or the third party property damaged by the defendant’s negligence.

The High Court of Australia in Barclay v Penberthy [27] found for a plaintiff company claiming recovery of its relational economic loss resulting from injury to key employees caused in a plane crash. The defendants (pilot and owners of the plane) had specific knowledge that the passengers were key employees of the plaintiff company and that the company had chartered the aircraft for a specific commercial purpose.

A plaintiff whose collateral contract with a third party is made less advantageous or more onerous due to negligently caused harm to the third party or its property, cannot recover against the tortfeasor unless that tortfeasor had specific knowledge or ought to have known of the collateral contract. The mere possibility that a third party may have collateral engagements that are affected by the tortfeasor’s negligence will not be sufficient for recovery of the contractual relational loss. [28]

In those jurisdictions where relational economic loss claims have succeeded there has been an absence in these cases of any ‘floodgate’ fear of exposing the defendant to indeterminate liability.

Vulnerability

An issue for courts in the recovery of purely economic loss is the vulnerability of the claimant. The law’s protection of purely economic interests, in contrast to its protection from physical harm to person or property, is more circumspect.

If a claimant had the opportunity to protect itself under contract from the economic loss sustained through the defendant’s negligence, this factor may weigh against the plaintiff’s recovery in tort. However, in Barclay v Penberthy [29] the High Court of Australia, in a majority joint judgment of five justices, dealt with the issue of the plaintiff’s vulnerability and potential to protect itself under contract. The majority stated that “it was not incumbent upon [the plaintiff company] to establish that it could not have bargained with the [defendant] for a particular contractual provision. The presence or absence of a claim in contract would not be determinative of a claim in tort”. [30] This view of the majority may be contrasted with that of Heydon J, who found that the failure of the plaintiff employer to establish that it could not have negotiated a contractual warranty of protection from economic loss from injury to its employees was fatal to its claim. [31]

Again Heydon J’s view of the importance of vulnerability and the potential of a plaintiff to protect itself from economic loss under a contract can be contrasted with the view of McLachlin J (as she then was) in the Supreme Court of Canada in Canadian National Railways Co v Norsk Pacific Steamship Company. [32] McLachlin J stated “that a ‘contractual allocation of risk’ rested on a questionable assumption that all persons or business entities organise their affairs in accordance with the laws of economic efficiency assigning liability to the ‘least cost risk avoider’ and that all parties to a transaction share an equality of bargaining power. It overlooks the historical centrality of personal fault to our concept of negligence …. and the role this may have in curbing negligent conduct”. McLachlin J concluded that “it is far from clear that the courts should deny recovery of pure economic loss on the basis of arguments based on allocation of risk”. [33]

The obvious vulnerability of a designated beneficiary under a will to the solicitor’s negligence under the contract with the testator in the ‘disappointed legatee’ cases, is a factor weighing in favour of the beneficiary. The beneficiary is a passive sufferer and has no ability to protect itself under the solicitor/client contract to which it is not a party.

The current law on the relevance of vulnerability is, that the fact a claimant seeking recovery of relational economic loss in a tort action could have protected itself under contract is not fatal to its claim.

Economic Efficiency

Where only economic interests are sought to be protected it is argued that it is better to spread the loss through the hands of the victims of negligently caused relational loss rather than place the economic burden on the shoulders of one tortfeasor. This is particularly so having regard to the availability of cheaper loss insurance for the victims, rather than expensive liability insurance.

Bishop however has correctly noted that the loss spreading rationale cannot justify the numerous cases where there is only one victim. [34] Furthermore Bishop states that relieving the tortfeasor of liability based on efficient risk distribution will result in more accidents and increase the cost of loss insurance. [35]

Arguments based on economic efficiency and risk distribution did not sway the majority in the landmark decision of the Supreme Court of Canada in Canadian National Railway Co v Norsk Pacific Steamship Co. [36] The majority preferred to rest their decision on the obvious close relationship or ‘joint adventure’ between the plaintiff railway company and the bridge owner whose bridge was damaged by the defendant’s ship.

Unwarranted Interference in Legitimate Commercial Activity

Will the imposition of a tort remedy for relational economic loss stifle and fetter the otherwise legitimate pursuit of economic gain? This question has been raised and advanced in cases of relational loss but has generally been rejected since the defendant’s conduct was not otherwise lawful [37] or the defendant was already under an existing duty to take care. Allowing recovery by the plaintiff for negligently caused relational loss would therefore not add an additional burden or fetter upon the conduct and enterprise of the defendant.

Certainty

A rejection of the exclusionary rule in relational economic loss claims removes the element of certainty. A significant justification in the cases for application of a rule which denies recovery for purely economic loss, not consequential on any injury to person or property of the claimant, has been the certainty it provides to legal advisers. [38]

But has the rejection of the exclusionary rule in favour of allowing recovery of relational economic loss in limited circumstances, resulted in uncertainty and an inability of legal advisers to predict a likely outcome? This question is discussed in the final section of this article (see Predictability below).

Deterrence

‘Floodgate’ and justice concerns of liability far outweighing the wrong done, economic efficiency, alternate means of protection to the claimant, and certainty in the law, are weighed against the policy of deterring negligence which may cause vast economic loss.

Relieving defendants of liability for negligence causing relational losses ignores the historical base of fault or delict in tort and will facilitate more accidents and more unprofessional conduct. [39] The effect on the community is to raise the cost of insurance and lower professional standards.

An analysis of the case law where claims are made for relational economic loss indicate that, absent any concern of indeterminate liability, policy issues of economic efficiency, availability of alternate means of protection to the victim, unwarranted interference in commercial activity, have not prevented recovery of relational loss.

Predictability

To what extent can legal advisers predict the likely outcome of relational economic loss claims and has the removal of the exclusionary rule preventing any recovery for purely economic losses, opened a vast unchartered area of uncertain claims?

The answer lies in an analysis of the body of precedent of claims for relational loss. By a process of analogical and deductive reasoning from precedents a likely outcome can be predicted. This process requires firstly a categorisation of the direct or primary effect of the defendant’s negligence. Has that negligence, in the first instance, injured or damaged (a) a third party or (b) property of the third party (c) public property or the environment, or (d) breached a contract between the third party and the defendant tortfeasor, such that there has resulted from (a) (b) (c) or (d) relational or secondary economic loss to the plaintiff (claimant).

This categorisation assists in isolating relevant cases and assessing by analogy and deductive reasoning, a likely outcome.

(a) Defendant’s Negligence has caused Injury to a Third Party with Relational Loss to the Plaintiff

Where the direct injury is to a third party with relational economic loss to the claimant, and leaving aside statutory claims by dependants under Lord Campbell’s Act legislation or an action per quod servitium amisit by a master (employer) for injury and breach of a duty of care owed to a servant (employee), the cases that have found for the claimant are situations where the defendant tortfeasor knew or ought to have known of the specific relationship or contract between claimant and injured third party. (See, for instance, the specific knowledge of the defendants in Barclay v Penberthy [40] ). Mere knowledge by the defendant of the possibility that there may be collateral or contractual commercial arrangements affected by injury to a third party is not sufficient to ground a successful claim for relational loss. [41]

(b) Defendant’s Negligence has caused Damage to the Property of a Third Party with Relational Loss to the Plaintiff

Where the defendant’s negligence has caused damage to the property of a third party with resultant economic loss to the plaintiff, it is the closeness of relationship of the plaintiff to the damaged property which will determine the outcome of the claim for such economic loss. If the plaintiff’s special relationship to the property damaged is obvious, or ought to have been obvious to the defendant tortfeasor, then the plaintiff is likely to succeed. This close relationship may be in the nature of a ‘common or joint adventure’ whereby the property of the plaintiff and the damaged property are exposed to the same risks (eg plaintiff’s cargo on a ship owned by the third party, where the ship is damaged by the defendant’s negligence; [42] or the third party’s pipeline, damaged by the defendant, was connected to the plaintiff’s oil terminal. [43] )

The mere fact that negligently caused damage to the property of a third party has resulted in relational financial loss to indeterminate persons not having any special or obvious relationship to that property, will not be sufficient for recovery.

(c)  Defendant’s Negligence has damaged Public Utilities or the Environment with Relational Loss to the Plaintiff

Similarly, where the defendant has damaged public property (eg interrupting the supply of water, electricity or gas) or the environment (ie toxic torts) with resultant relational loss, then again, unless there is some special and obvious relationship of the claimant going beyond the general relationship which the mass of the public have, to the property or thing affected, then recovery of relational loss will be denied. The relationship of the fishing industry to the waters affected by an oil spill is a special and obvious relationship to the thing damaged [44] . Whereas the general decline in commercial activity in the area of an oil spill would not result in those businesses having successful claims for their economic loss, since there is no special or obvious relationship between the businesses and the thing affected (ocean). [45]

In the instance of damage to public utilities such as water, gas or electricity causing financial loss to business through interruption of supply, that relational loss has only been recoverable where the defendant knew or ought to have appreciated that a specific individual or limited class of individuals would be affected and the plaintiff was one of these individuals. [46] If the plaintiff was merely one of an indeterminate class of persons affected by the interruption to supply any claim for relational loss would fail. [47]

(d) Defendant’s Negligence has breached a Contract with a Third Party with resultant Relational Loss to the Plaintiff

This category of relational loss has been highlighted in the ‘disappointed legatee’ cases where the negligence of the solicitor has breached the solicitor/client contract thereby causing a will to fail with resultant economic loss to a designated beneficiary. The ‘disappointed legatee’ cases have not raised any ‘floodgate’ fears of indeterminate liability since the loss has been caused to a limited and predetermined number of individuals, namely designated beneficiaries. Nor have any policy reasons been sufficient to override the claim of the disappointed beneficiary.

Where a defendant’s negligence towards a third party is a breach of contract with that third party and the negligence results in relational loss to the plaintiff, the plaintiff will not recover unless the defendant knew or ought to have known of the likely specific loss to the plaintiff. In the case of the disappointed beneficiary, the loss to the beneficiary is obvious to the defendant solicitor. Mere knowledge by the defendant that its negligence and breach of contract with a third party, possibly might cause secondary loss to indeterminate individuals, without knowledge of any specific person affected would not be sufficient for recovery.

Conclusion

In those cases where relational loss has been recovered there has been no threat of exposing the defendant to indeterminate liability.

The case law indicates discrete categories where recovery of relational loss has succeeded by a limited number of individuals having a special and obvious close relationship to the person or thing directly affected by the negligence. While not providing certainty, these discrete categories and the cases in that category where claims have succeeded, provide a basis for legal analysis of a potential claim. By a process of deductive reasoning from similar claims in a particular category legal advisers are able to predict a likely outcome. [48]

 

Dr Norman Katter

 

Footnotes

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[1] [1932] AC 562, 619.

[2] Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB27; Electrochrome Ltd v Welsh Plastics

Ltd [1968] 2 All ER 205; SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1971] 1QB 337; SeawayHotels

Ltd v Cragg (Canada) Ltd (1959) 21 DLR (2d) 264; Dynamco Ltd v Holland and Hannen & Cubitts (Scotland)

Ltd [1971] SC 257; Byrd v English (1903) 117 Ga 191; Mainguard Packaging Ltd v Hilton Haulage [1990] 1NZLR 360; New Zealand Forest Products Ltd v Attorney – General [1986] 1 NZLR 14.

[3] Canadian National Railway Co v Norsk Pacific Steamship Co Ltd [1992] 1 SCR 1021; Gypsum Carriers Inc v

The Queen (1977) 78 DLR (3d) 175; Bethlehem Steel Corp v St Lawrence Seaway Authority (1977) 79 DLR

(3d) 522; Star Village Tavern v Nield (1976) 71 DLR (3d) 439; Rickards v Sun Oil Co (1945) 41 A (2d) 267, 23

NJ Misc 89.

[4] Union Oil Company v Oppen (1974) 501 F 2d 558.

[5] Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd (1985) 3 NSWLR 159; [1986] AC 1; La

Societe Anonyme de Remorquage a Helice v Bennetts [1911] 1 KB 243; Elliott Steam Tug Company Ltd v Shipping Controller [1922] 1 KB 127; Robins Dry Dock & Repair Co v Flint (1927) 275 US 303; [1910] SC772; The Federal Number Two (1927) 21 F (2d) 313; Christopher v Motor Vessel “Fiji Gas” (1993) Aust Torts Reports 81-202.

[6] Fifield Manor (A Corporation) v Finston (1960) 354 P 2d 1073.

[7] French Knit Sales Pty Ltd v N Gold & Sons Pty Ltd [1972] 2 NSWLR 132.

[8] Hill v Van Erp (1997) 188 CLR 159; White v Jones [1995] 1 All E R 691; Gartside v Sheffield, Young & Ellis

[1983] NZLR 37; Seale v Perry [1982] VR 193; Ross v Caunters [1980] 1 Ch 297.

[9] Badenach v Calvert [2016] HCA 18.

[10] [2012] HCA 40

[11] Canadian National Railway Co v Norsk Pacific Steamship Company [1992] 1 SCR 1021; Gypsum Carrier Inc v The Queen (1977) 78 DLR (3d) 175.

[12] New Zealand Forest Products Ltd v Attorney- General [1986] 1 NZLR 14; Mainguard Packaging Ltd v Hilton Haulage Ltd [1990] 1 NZLR 360; Gartside v Sheffied, Young & Ellis [1983] NZLR 37

[13] Barclay v Penberthy [2012] HCA 40; Badenach v Calvert [2016] HCA 18; Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd (1985) 3 NSWLR 159; [1986] AC 1; Hill v Van Erp (1997) 188 CLR 159.

[14] Union Oil Company v Oppen (1974) 501 F 2d 558; Biakanja v Irving (1958) Cal 2d 647; 320 P 2d 16.

[15] See eg Union Oil Company v Oppen (1974) 501 F 2d 558.

[16] Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021.

[17] Barclay v Penberthy [2012] HCA 40; Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529.

[18] See eg Mainguard Packaging Ltd v Hilton Haulage Ltd [1990] 1 NZLR 360.

[19] [1971] 1 QB 337.

[20] [1990] 1 NZLR 360, 372.

[21] Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529, 51 per Stephen J; Main v

Leask [1910] SC 772, 779 per Lord Ardwell.

[22] Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529, 555-556 per Gibbs J (as he then was).

[23] SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1971] 1 QB 337.

[24] Mainguard Packaging Ltd v Hilton Haulage Ltd [1990] 1 NZLR 360, 372.

[25] Gartside v Sheffield, Young & Ellis [1983] NZLR 37, 47.

[26] Ross v Caunters [1980] 1 Ch 297 at 322, 323.

[27] [2012] HCA 40.

[28] Fifield Manor (A Corporation) v Finston (1960) 354 P 2d 1073; French Knit Sales Pty Ltd v N Gold & Sons Pty Ltd [1972] 2 NSWLR 132.

[29] [2012] HCA 40.

[30] Ibid at para. 47.

[31] Ibid at paras. 87,88

[32] [1992] 1 SCR 1021.

[33] Ibid at 1157,1158,1160h.

[34] W Bishop “Economic Loss in Tort” (1982) 2 Oxf J Legal Studies 1, 2

[35] Ibid.

[36] [1992] 1 SCR 1021.

[37] See eg Perre v Apand [1999] HCA 36, paras 101,102,103.

[38] See eg Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd [1986] 1 AC 1, 25.

[39] Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021, 1157,1158,1160 per

McLachlin J.

[40] [2012] HCA 40, paras 44,48.

[41] Fifield Manor (A Corporation) v Finston (1960) 354P 2d 1073; French Knit Sales Pty Ltd v N Gold & Sons Pty Ltd [1972] 2 NSWLR 132.

[42] Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265, 279-280, 296-297

[43] Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529.

[44] Union Oil Company v Oppen (1974) 501 F 2d 558, 569,570,571.

[45] Ibid.

[46] New Zealand Forest Products Ltd v Attorney-General [1986] 1 NZLR 14; Mainguard Packaging Ltd v Hilton

Haulage Ltd [1990] 1 NZLR 360.

[47] Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1QB 728; SCM (United Kingdom) Ltd v WJ Whittell & Son Ltd [1971] 1 QB 337.

*LL.B, LL.M, PhD Barrister-at-Law

 By Rob Ivessa

At the broadest definition of “agency”, when a person is tasked with doing something for another person they are the agent of that person.

The dividing line between when a person is or is not liable in tort for another person’s actions is blurry, capricious and fundamentally different to other areas of law.

In contract law, for example, a principal [1] is, as a matter of course, liable (subject to limited and principled exceptions) for the actions of an agent acting within the scope of their agency. Further, in contract, it is the principal who is solely liable.

By contrast, in tort, a principal is only liable in limited (and at first blush arbitrary) categories, for the actions of their agent. Further, generally, if a principal is liable, their liability is usually secondary (or vicarious) to the primary liability of the agent.

The purpose of this article is to define and attempt to explain the outer limits of the dividing line.

Rough Approximation

A very rough approximation of the dividing line is that, in tort a person is liable for the tortious acts of another person:

1. which are committed in the course of an employee’s employment (by vicarious liability).

2. which is specifically authorised (pursuant to either primary liability or agency principles);

3. who is held out as representing the person in commerce and for certain representation based torts (pursuant to both vicarious liability and agency principles);

4. committed in the course of driving the first person’s vehicle when the first person retained control over the driving (as a special category of vicarious liability); or

5. for which the principal was under a non-delegable duty (as a special type of primary liability).

Table of Contents

Liability Based on Agency -v- Vicarious Liability . 2

Vicarious Liability for Employees . 2

Employee or Independent Contractor? . 3

Connection of Conduct to Employment 4

Dual Vicarious Liability . 7

Liability for Non-Employees . 9

Specifically Authorised Acts . 9

Commercial Agents acting as Representatives . 10

Vehicle Accident Cases . 12

Non-Delegable Duties . 13

Liability Based on Agency -v- Vicarious Liability

Liability based on agency and vicarious liability can be conceptually distinguished on two bases:

1. Under the law of agency, a principal is treated as if they actually did the things their agent did and thus they are the one and only defendant. Under vicarious liability, a person who is vicariously liable is jointly responsible for the tort of the other person and thus they are only a further defendant to the other person.

2. Agency depends primarily on the authority (actual, implied or ostensible) given to the agent by the principal. Vicarious liability focuses on the level of control exercised or exercisable by one person over another [2] .

While the two sources of liability are conceptually distinct, there is a significant overlap of principles and terminology such that the delineation between the two is often blurry [3] .

Vicarious Liability for Employees

The majority of the High Court in Sweeney v Boylan Nominees Pty Ltd [4] stated that there are “some basic propositions” central to this body of law (emphasis added):

“First, there is the distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable). Secondly, there is the importance which is attached to the course of employment. ”

In that case the majority of the High Court held that the defendant who engaged a negligent mechanic to perform repair works was not vicariously liable as the mechanic was an independent contractor.

The two key elements of a successful claim against an employer of a negligent person based on vicarious liability are that:

1. The negligent person was (in substance) an employee of the defendant; and

2. The tort was committed in the course of the employment or with a sufficient connection to the employment.

Employee or Independent Contractor?

In Hollis v Vabu Pty Ltd [5] the majority of the High Court held that a defendant who engaged a bicycle courier on a purported independent contractor basis was liable for the negligence of the courier. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ held that the courier was in fact the employee of the defendant

The majority laid down a two-limb test for determination of whether the relationship was truly independent contracting, being [6] :

“Viewed as a practical matter”:

1. Was the person “running their own business or enterprise”? and
2. Did the person “have independence in the conduct of their operations”?

The majority found a relationship of employment rather than independent contracting for 7 reasons:

1. A bike courier needed no skill or qualification and would have been unable to make “an independent career as a free-lancer” [7] .
2. The couriers had little control over the matter of performing their work [8] :

a. their hours were fixed;

b. they could not refuse work;

c. there was no evidence they were able to delegate their tasks;

d. it was unlikely they could have worked for other courier companies during the fixed hours.

1. The defendant’s couriers all wore clothing identifying them as representatives of the defendant [9] .
2. Due to the “matter of deterrence” as the defendant knew of the risks, fixing the defendant with responsibility for the couriers’ negligence would reduce the risk of future harm [10] .
3. The defendant controlled all aspects of the courier’s remuneration and “annual leave” [11] .
4. In terms of tools required to be provided and maintained by the couriers, the bike, this was a relatively small capital outlay [12] .
5. The defendant maintained control not just over incidental or collateral matters but “there was considerable scope for the actual exercise of control.” [13]

Connection of Conduct to Employment

The traditional test for whether (once a relationship of employment is established) an employer will be liable for the acts of an employee is whether the employee was acting in the course of their employment [14] .

One way of looking at the question is to distinguish between the employee’s wrongful mode of doing what they were employed to do (for which their employer will be liable) from an employee doing something outside of what they were employed to do (for which an employer will not be liable). [15]

By way of an example, a bus company was not held vicariously liable for the actions of a conductor (not employed as a driver) who, of his own volition, attempted to turn a bus around at a depot injuring a third party [16] but in another case was held vicariously liable for the actions of its driver who permitted a conductor to drive the bus [17] . In those cases, it could not be said that the conductor’s actions were a wrongful mode of doing what he was employed to do (sell tickets and supervise passengers) whereas the driver’s actions were taken as a wrongful mode of doing his job (controlling the driving of the bus).

In Deatons Pty Ltd v Flew [18] the High Court held that the employer of a barmaid who threw a glass at a customer who she was serving was not vicariously liable for her actions. The essence of the judgment was that the barmaid was not employed to keep order in the bar (or dispense rough justice). She was employed to serve drinks to customers and her throwing the glass could not be seen a wrongful mode of doing her job.

A recent High Court case, Prince Alfred College Incorporated v ADC [19] (PAC), has given detailed consideration this issue.

The Facts of Prince Alfred College

In PAC, a man was the victim of sexual abuse in 1962 at his school (the defendant, PAC) by his boarding master. The relevant limitation period expired in 1973 when the victim was 24 years old. It was not until the 1990s when the victim’s son began attending the same school that the victim began to suffer from worsening PTSD symptoms.

In 1997 the victim had a meeting with PAC in which the prospect of litigation was raised but the victim accepted a small offer of financial assistance. After that time the victim’s mental condition worsened.

In 2008 the victim commenced proceedings against PAC on the basis (inter alia) that it was vicariously liable for the wrongful acts of its employee. He also applied for an extension of the limitation period.

The Judgment in Prince Alfred College

The victim’s claim and application was dismissed at first instance on the basis that liability has not been established and the defendant was too greatly prejudiced in being able to defend the claim by the delay. The primary judge held that the sexual abuse was [20] :

“…so far from being connected to [the boarding master] Bain’s proper role that it could neither be seen as being an unauthorised mode of performing an authorised act, nor in pursuit of the employer’s business, nor in any sense within the course of Bain’s employment. I find that the defendant did not, by means of any proven requirement of Bain, create or enhance the risk of Bain sexually abusing the plaintiff.”

The victim appealed. The Full Court of the Supreme Court of South Australia upheld an appeal as to liability and the extension application. PAC appealed that decision to the High Court.

The full bench of the High Court unanimously upheld the appeal and upheld the primary judge’s conclusion as to the extension application and said that it could not determine the liability question. Nevertheless the principles governing liability for vicarious liability were fully considered as part of consideration of the extension application issue [21] .

Legal Principles Stated

French CJ, Kiefel, Bell, Keane and Nettle JJ said [22] :

“Vicarious liability is imposed despite the employer not itself being at fault. Common law courts have struggled to identify a coherent basis for identifying the circumstances in which an employer should be held vicariously liable for negligent acts of an employee, let alone for intentional, criminal acts.”

The “course of employment” consideration had been described as a determinative “rule” [23] . Its limitations were recognised and its status downgraded to a “touchstone for liability” in PAC, by French CJ, Kiefel, Bell, Keane and Nettle JJ [24] :

“Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment. It is to some extent conclusionary and offers little guidance as to how to approach novel cases. … But it has not yet been suggested that it should be rejected. It remains a touchstone for liability.”

The difficulty to which their Honours allude is that the “usual case” where a person does their job negligently works well with the “course of employment” test whereas “novel cases” such as intentional torts do not always.

Their Honours analysed alternative overseas approaches where Courts have had greater regard to “general principles” and policy considerations (of whether it would be fair and just to hold an employer liable).

Ultimately their honours eschewed that approach in favour of continued utilisation of an incremental approach [25] :

“…if a general principle provides that liability is to depend upon a primary judge’s assessment of what is fair and just, the determination of liability may be rendered easier, even predictable. But principles of that kind depend upon policy choices and the allocation of risk, which are matters upon which minds may differ. They do not reflect the current state of the law in Australia and the balance sought to be achieved by it in the imposition of vicarious liability.

Since the search for a more acceptable general basis for liability has thus far eluded the common law of Australia, it is as well for the present to continue with the orthodox route of considering whether the approach taken in decided cases furnishes a solution to further cases as they arise. This has the advantage of consistency in what might, at some time in the future, develop into principle.”

Their Honours held that the mere fact that employment provided the occasion or the opportunity to commit a wrong will be of itself insufficient to found vicarious liability but both together may. [26] The “relevant approach” was held [27] to be:

1. “…to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim.

2. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include:

a. authority,

b. power,

c. trust,

d. control and

e. the ability to achieve intimacy with the victim.

The latter feature may be especially important.”

(enumeration added)

In the context the “particular features” should be read as each being over or with respect to the victim.

Gageler and Gordon JJ, in agreement with the other 5 judges as to the outcome in PAC, provided the following view of the “relevant approach” described above [28] :

“We accept that the approach described in the other reasons as the “relevant approach” will now be applied in Australia. That general approach does not adopt or endorse the generally applicable “tests” for vicarious liability for intentional wrongdoing developed in the United Kingdom or Canada (or the policy underlying those tests), although it does draw heavily on various factors identified in cases involving child sexual abuse in those jurisdictions.

The “relevant approach” described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.”

Dual Vicarious Liability

Is it permitted?

The question of dual vicarious liability is whether, at common law, two defendants can be held simultaneously and severally liable for the actions of the one employee. An example is where a worker is actually employed by a labour hire company (the general employer) but actually works for and at the direction and supervision of another entity (the particular employer).

There was long thought to be a rule in England and Australia that the law does not recognise a servant serving two masters at the same time in the once instance of employment [29] .

This rule was in part based on the undesirability of the encouraging a multiplicity of actions (where under old procedural rules such actions would have to be brought separately).

In 2005, the rule against dual vicarious liability was resoundingly swept away in England in the important case of Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [30] .

The subsequent treatment of Viasystems in England and Australia was succinctly summarised by McLure P in Kelly v Bluestone Global Ltd (in Liq) [31]

“Viasystems was approved by the English Supreme Court in Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319, noting that ‘the law on vicarious liability is on the move’ [19]. That may be so in England but it has yet to stir in Australia. The New South Wales Court of Appeal in Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335 has concluded that dual vicarious liability is inconsistent with the reasoning of the majority (Gibbs CJ, Wilson & Dawson JJ) in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626. There is also academic support for that position.”

It thus appears that in Australia the common law rule against dual vicarious liability is strongly entrenched.

The common law rule has been, in some areas, displaced in Australia by statutory dual vicarious liability such as s917C of the Corporations Act (Cth) [32] .

Who will be liable?

The question then remains if both a general employer and a particular employer cannot be dually liable for a tort committed by an employee, which of them will be liable?

The position is summarised by Sir Frederick Jordan CJ (with Halse Rogers and Roper JJ agreeing) in McDonald v The Commonwealth [33] :

“The more authoritative modern decisions emphasise the point that, unless of course the act of the employee was outside the scope of the employment of both general and particular employer, the liability of the former or the latter depends upon the nature and the extent of the control transferred to the latter or retained by the former. … Prima facie, it is the general employer who is liable; … and liability is not shifted to the particular employer by the fact that even a considerable degree of control is exercisable by him; but the greater his right to control, the greater the likelihood that it is open to a tribunal of fact to find that his has become the relevant control, and that a shift of liability has occurred. …

I think that the principles established by the authorities are as follow [sic]. If by the agreement the employer vests in the third party complete, or substantially complete, control of the employee, so that he is entitled not only to direct the employee what he is to do but how he is to do it, and the employee was performing services stipulated for, or authorised by, the third party at the time, the third party is liable. … If the control vested in the third party is only partial, so that, although the third party is entitled to give directions to the employee as to what he is to do, he is not entitled to direct him how he is to do it, the employer remains liable. If, however, the third party, though not entitled to do so as between himself and the employer, assumes to give a special direction to the employee as to how he is to do a particular act, or if he directs him to do an act outside the scope of the stipulated services, and the employee, in complying with the direction, negligently causes the injury, it is the third party who is liable. … If the act of the employee which causes the injury was done outside the scope of any employment either by the employer or by the third party, and not as the result of any express or implied direction of either, the employee alone is liable.” (original emphasis)

Liability for Non-Employees

Specifically Authorised Acts

A person who causes a tort to be committed through another person (or even an animal) is liable as if they had done the act themselves. As Balkin and Davis explain [34] :

“If X sets his or her dog upon Y it is as much battery as if X had struck Y with a fist.”

The classic example is a passenger directing a driver to speed. The passenger will be primarily liable (jointly with the taxi driver) for any ensuing tort. The passenger is liable regardless of whether the driver was an employee, an independent contractor or a volunteer.

In less clear cases, such as the liability of company directors for torts committed by the company, three competing tests for liability have developed:

1. Liability where the person “directs or procures” the tortious conduct [35] ;

2. Liability where the person “makes the tortious conduct their own” [36] ;

3. Liability where the person “assumes responsibility” for the tort [37] .

The first test (“directs or procures”) is the oldest and broadest. Under this test a director who voted for an act that constitutes a tort would be personally liable for the tort. This test has been criticised as being one that too readily pierces the corporate veil (especially in the case of one-director companies). It has nevertheless been widely applied in Australia and to a degree in England.

The second test emanated from of a line of Canadian cases and is the middle ground in both respects. It would appear that under the second test simply directing that something happen would not suffice. It has been criticised as “indeterminate and circular” [38] . It has been followed to a degree in England but has found only marginal favour in Australia.

The third test is the newest and narrowest. It emanates from a New Zealand Court of Appeal case, Trevor Ivory Ltd v Anderson [39] in which the sole director of a one-person company was not held liable for a negligent misstatement that the company made to a plaintiff who voluntarily chose to deal with the company. In New Zealand, Trevor Ivory has subsequently been explained to be not a general test but one only relevant to “dealing cases” where the plaintiff and the defendant’s company have been involved in previous dealings together. This test has also found some favour in England but little in Australia.

After a detailed analysis of the above tests and their supporting authorities Sundberg J held that the “directs or procures” is supported by “the clear preponderance of authority” [40] .

In Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd [41] Redlich J found “despite the absence of any binding authority” the “directs or procures” test is the “standard for determination of a director’s liability”.

It is only necessary that the defendant direct or procure the act that constitutes the tort not that they know of the wrong doing [42] .

Ratification

A person may be similarly liable (through agency principles) if they ratify an act that constitutes a tort after the fact in the same way as they would have been had it been specifically authorised prior [43] .

Commercial Agents acting as Representatives

A category of liability has developed where torts involving representations (negligent or fraudulent misrepresentation, deceit, defamation) committed by commercial agents representing a principal can be the subject of vicarious liability. This category represents one of the greatest blurring of lines between agency and vicarious liability.

CML

In Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [44] (CML), a Mr Ridley, the a non-employee agent of an insurance company, engaged as a “canvasser” made a defamatory statement about a competitor’s solvency to entice a customer to switch insurers. By a 4:2 majority the High Court held the principal insurance company liable.

Gavan Duffy CJ and Starke J (in the majority) held the defendant vicariously liable on the basis of employment or alternatively on the basis that Ridley was “put in a position to do the class of acts complained of”. [45]

All other members of the Court found that the relationship was not one of employment but rather agency.

Dixon J (in the majority) with whom Rich J agreed, held the defendant liable on the basis of agency. His Honour stated (emphasis added) [46] :

“…the liability of a master for the torts committed by his servant in the course of his employment is not imposed upon the appellant by the agency agreement, but I do not think that it follows that the appellant incurs no responsibility for the defamation published by the “agent” in the course of his attempts to obtain proposals.

In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity.”

Evatt and McTiernan JJ (writing separately in the minority) each held the defendant not liable on the basis that there was no employment of Ridley and he was not acting within his agency.

Evatt J’s dissent was based on a differing view of the facts and not any rejection of Dixon J’s conception that a principal can be held liable for the statements made by an agent representing it.

McTiernan J specifically said (albeit in obiter dicta) [47] :

“…the appellant would be liable for the publication by Ridley of the slanders… if that act were done in exercising the authority with which Ridley was entrusted by the appellant.

…

It follows that Ridley would be acting within the scope of his authority, for example, when, in search of proponents for insurance, he spoke to people of the appellant Company, its business and its policies. He would be acting in the course of that authority if he made any false statement about those matters or said anything concerning them, which he was not expressly authorized to say or was forbidden to say.” (emphasis added)

In Sweeney v Boylan Nominees Pty Ltd [48], after reaffirming the general position that independent contractors do not generally attract vicarious liability, affirmed the result in CML thus (emphasis added):

“The conclusion reached in Colonial Mutual Life, that the party engaging an agent (albeit as an independent contractor) to solicit for the creation of legal relationships between that party and others is liable for the slanders uttered in the course of soliciting proposals, stands wholly within the bounds of the explanations proffered by Pollock for the liability of a master for the tortious acts of a servant. It stands within those bounds because of the closeness of the connection between the principal’s business and the conduct of the independent contractor for which it is sought to make the principal liable. The relevant connection is established by the combination of the engagement of the contractor as the agent of the principal to bring about legal relations between the principal and third parties, and the slander being uttered in the course of attempting to induce a third party to enter legal relations with the principal.”

Vehicle Accident Cases

A unique and much criticised category of liability is cases where the owner of a motor vehicle exercises control over a driver (not necessarily an employee or contractual agent) who drives negligently causing an accident.

The high watermark of this category of liability in Australia is Soblusky v Egan [49] . In that case the High Court held that the “owner” of a car (who was in that case actually just the bailee of the car) who was asleep in the car while it was driven by another person was vicariously liable for the driver’s negligent driving. The determinative factor in that case appeared to be that the sleeping driver, as bailee, had “full legal capacity” to “assert his power of control” of the vehicle.

In Scott v Davis [50] the High Court declined to extend the principles of Soblusky to impose liability the owner of an airplane for the negligence of a pilot when he remained on the ground. It should be noted that in that case the Court noted that it was not invited to reopen Soblusky. Gummow, Hayne and Callinan JJ (in the majority) held that the Soblusky principles should not extend beyond motor vehicles cases.

Subsequently Callinan J said in Leichhardt Municipal Council v Montgomery [51] that Soblusky:

“…appeared to impose, by means of a special and oppressive form of vicarious liability, non-delegability in substance, has at least to be doubted as a result of the reasoning of this court in Scott.”

Therefore while Soblusky remains binding authority there is a reasonable chance it will be revisited in the future.

If Soblusky is no longer good law, it would seem that this category could largely be ameliorated with liability for specifically authorised acts [52] or primary liability [53] .

Non-Delegable Duties

A final way in which a person may be liable for the torts of another is if the first person is under a “non-delegable duty of care” also called a “personal duty”. It is a duty upon a person not only to take reasonable care in what they do but to ensure that reasonable care is taken by others. In such situations the negligent performance of the duty by anyone to whom performance is outsourced (regardless of the relationship) will attract liability.

When non-delegable duties will be found is better understood by reference to the established categories rather than any unifying principle. No definitive statement of the bounds of non-delegable duties has been authoritatively given although it can be said that the categories that have been found all involve a defendant who has undertaken to control people or the property of people who are vulnerable [54] .

Categories of duty that have been found to be non-delegable are:

1. Schools to pupils [55] ;

2. Employers to workers [56] ;

3. Hospitals to admitted patients [57] ;

4. Dangerous land users to neighbours [58] ;

5. Prisons to prisoners (including immigration detainees) [59] ; and

6. Landlords to tenants (for repairs) [60] .

While the categories are not closed, in Leichhardt Municipal Council v Montgomery [61] , the High Court refused to extend the categories of non-delegable duties to the duty road authorities owe to road users. In that case Callinan J said [62] that the Court should:

“…scrutinise with great care, and generally reject, the imposition of non-delegable duties, unless there are very special categories warranting an exception.”

A non-delegable duty does not extend to “collateral negligence” being negligence not inherent to the work itself but confined to the mode of performing the work [63] . By way of an example, a landlord would be liable pursuant to a non-delegable duty if they engaged a contractor to conduct repairs to a wall which collapsed on the tenant due to negligent construction; the landlord would not be liable pursuant to a non-delegable duty if the contractor, while building the wall dropped a hammer on the tenant.

Rob Ivessa

 

Footnotes 

---

[1] a person who engaged another person to act for them ;

[2] Kelly v Bluestone Global Ltd (in Liq) [2016] WASCA 90 at [71]

[3] Bowstead and Renolds, On Agency, (Sweet & Maxwell), 19^th Ed (2010), [8-176] p486

[4] (2006) 226 CLR 161 at [12] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ

[5] Hollis v Vabu Pty Ltd (2001) 207 CLR 21

[6] at [47]

[7] at [48]

[8] at [49]

[9] at [50] to [52]

[10] at [53]

[11] at [54] to [55]

[12] at [56]

[13] at [57]

[14] Greenwood v Commonwealth [1975] VR 859 at 860

[15] Goh Choon Seng v Lee Kim Soo [1925] AC 550

[16] Beard v London General Omnibus Co [1900] 2 QB 530

[17] Ricketts v Thos Tilling Ltd [1915] 1 KB 644

[18] Deatons Pty Ltd v Flew (1949) 79 CLR 370

[19] Prince Alfred College Incorporated v ADC [2016] HCA 37 handed down 5 October 2016

[20] A, DC v Prince Alfred College Incorporated [2015] SASC at [179]

[21] at [10]

[22] at [39]

[23] Balkin and Davis, The Law of Torts, 5^th Ed (2013) Lexis Nexis at [26.41] to [26.42]

[24] at [41]

[25] at [45] to [46]

[26] at [80]

[27] at [81]

[28] at [130] to [131]

[29] Laugher v Pointer (1826) 5 B & C 547 at 558; 108 ER 204 at 208; Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] 1 AC 643 at 686

[30] Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] All ER (D) 93 (Oct); [2006] QB 510; [2005] EWCA Civ 1151

[31] Kelly v Bluestone Global Ltd (in Liq) [2016] WASCA 90 at [63]

[32] multiple holders of Australian financial services licences may be liable for the conduct of a single authorised representative.

[33] McDonald v The Commonwealth (1945) 46 SR (NSW) 129 at 132

[34] Balkin and Davis, The Law of Torts, 5^th Ed (2013) Lexis Nexis at [26.21]; Torette House Pty Ltd v Berkman (1940) 62 CLR 637 at 647

[35] Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 at 14, 15; Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507 ; C Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317; Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts R 81-397; Hannaford v Stewart [2011] NSWSC 448 at [318]

[36] Mentmore Manufacturing Co Inc v National Merchandising Manufacturing Co Inc (1978) 89 DLR (3rd) 195

[37] Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517; Williams v Natural Life Health Foods [1998] 2 All ER 577 at 584;

[38] J H Farrar, “The Personal Liability of Directors for Corporate Torts” (1997) 9 Bond L Rev 102

[39] Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517

[40] Pioneer Electronics Australia Pty Ltd v Lee [2000] FCA 1926 at 45; and

[41] Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at [201]

[42] Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd (2003) 9 VR 171 at [200]

[43] Potter v North (1669) 1 Wms Saund 347(c) n4; 86 ER 245 180

[44] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41

[45] at 46

[46] at 48

[47] at 71

[48] (2006) 226 CLR 161 at [24] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ

[49] (1960) 103 CLR 215

[50] (2000) 204 CLR 333

[51] (2007) 230 CLR 22 at [188] (in dissent although not controverted by the majority on this aspect)

[52] Eg. A situation where a driver is specifically directed to speed by an owner of the vehicle who is not present.

[53] Eg. Where a vehicle owner co-manages the driving of the vehicle.

[54] Kondis v State Transport Authority (1984) 154 CLR 672 at 686-7; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 32; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550.

[55] Kondis v State Transport Authority (1984) 154 CLR 672 at 685; Commonwealth v Introvigne (1982) 150 CLR 258;

[56] Kondis v State Transport Authority (1984) 154 CLR 672; Czatyrko v Edith Cowan University (2005) 214 ALR 349

[57] Kondis v State Transport Authority (1984) 154 CLR 672 at 685; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

[58] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

[59] S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217

[60] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

[61] Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22

[62] at [190]

[63] Padbury Holliday & Greenwood Ltd (1912) 28 TLR 494

By the Honourable Judge Robertson  

I am honoured to speak to you this morning, although I have to say that my credentials to speak on advocacy are not as impressive as a number in this room, who have spent their whole professional careers as advocates in front of juries and people like me.  As some of you are aware, I was the first solicitor appointed to the District Court in 1994, when I became the first resident Judge in Ipswich.  People like Todd Fuller and Tim Ryan were responsible for much of the advocacy in my court on behalf of the Crown.  I soon realised that as the Judge, you really did have the final say — not on the most important question — but basically on everything else, and I intend to refer to both of them today in roughly similar circumstances to the court room, where there is a limited right of reply, or in Tim’s case, none because he is not here.

To appreciate the role of the prosecutor in advocacy, it is necessary to understand the nature of the duty and role of the prosecutor in the trial process.  It has been stated many times, and is contained in the Director’s Guidelines.  The prosecutor is often referred to as a “Minister of Justice”, whatever that means.  It is an expression that has been handed down through the ages, and was perhaps coined for the first time in this context by Theodore Roosevelt.  

In R v Gathercole [2016] QCA 336 at [49], the President of the Court of Appeal wrote:

[49] It is well established that in conducting an Australian criminal trial, which is both accusatorial and adversarial, the prosecutor has a duty not to obtain a conviction at any cost but to act as a minister of justice. The prosecutor’s role is to place before the jury the evidence the prosecution considers credible and to make firm and fair submissions consistent with that evidence but without any consideration for winning or losing. The central principle is that the prosecution case must be presented with fairness to the accused. Unfairness may arise from the manner in which the prosecutor addresses the jury.”

It was interesting to review the various DPP Guidelines in the Australian states.  The further one goes back in time, the more poetic are the descriptions of the role and duty of the prosecutor, and certainly in 1958 when, if not all, the vast majority of Crown prosecutors were male, the following was written by R R Kidston QC, former Senior Crown Prosecutor of New South Wales:

“it behoves him — Neither to indict nor on trial to speak for conviction except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency or to pique any person or please any power; not to be either gullible or suspicious, intolerant or over-pliant: in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance.”

A violinist and a small choir may have been useful props for a prosecutor attempting to achieve such lofty ambition.  It is often said that the most effective prosecutor is the fair one, but fairness is not readily assimilated into an adversarial system in which the players are human beings, often possessed of considerable ego.  It is well put in the New South Wales DPP Guidelines:

“Nevertheless, there will be occasions when the prosecutor will be entitled firmly and vigorously to urge the prosecution view upon a particular issue and to test, and if necessary to attack, that advanced on behalf of an accused person or evidence adduced by the defence. Adversarial tactics may need to be employed in one trial that may be out of place in another. A criminal trial is an accusatorial, adversarial procedure and the prosecutor will seek by all proper means provided by that process to secure the conviction of the perpetrator of the crime charged.”

With those preliminary remarks in mind, I offer up my own, perhaps idiosyncratic, observations on advocacy techniques for you, as prosecutors.  I only have a short time to go as a Judge, so I direct you not to quote this paper to me or to any other Judge as authority for anything.

The trial

(a) Challenges 

Advocacy starts with the jury empanelment.  The prosecutors’ challenges (referred to for historical reasons as standbys) should not be exercised for the same reasons as the defence.  Having said that, I am convinced that the whole process, informed as it is by very little evidence, is a mixture of hocus pocus and prejudice.   I leave aside information that may be available to the parties under the Jury Act that is not available to the Judge.  There is no evidence to support the firmly held beliefs of some that young people lack the life experience to be responsible jurors, or that older women are more likely than men to harshly judge a mature woman who is a complainant in a sexual matter.  The standby should therefore be exercised sparingly.  In my experience, the most competent counsel do just this, recognising that there is no provable forensic reason for exercising all eight challenges simply because the law says you can.  The tone and timing of the challenge is important.  Some counsel, predominantly on the defence side, do not seem to appreciate that shouting “challenge” at a juror, when that person has almost reached the bailiff, is both discourteous, and also potentially forensically disadvantageous, as the actual jury is likely to see the barrister as a wanker from the start.

(b) The impartiality speech

Surprising as it may seem, this small event can involve advocacy.  I have the practice of asking the prosecutor to give the panel a brief overview of the case at this point, so as to avoid the more frequently occurring situation where a juror suddenly realises that they know someone involved in the case when the name is read to them in context.  In a recent trial involving multiple child complainants, I was very impressed by the prosecutor who showed the panel screen shots of the children from the pre-record; working on the intelligent premise that prospective jurors may more readily recognize a witness from a photo than from a name  At this stage of the trial, it is easy to treat the speech as a mechanical exercise, but it is much better to connect with the jury as this is the time of first impression.  In describing the occupations of witnesses, again, care should be taken.  To describe a person’s occupation as being “devoted to home duties”, is likely to put everyone off.  These are small issues, but important in my view.

(c) The prosecution opening

A short, well-directed opening will be much more effective than a lengthy, discursive speech.  From my own experience in writing judgments, it is the shorter ones that show much more decisive engagement with the real issues in a case.  Mark Twain once said “I didn’t have time to write you a short letter, so I wrote a long one instead.”

I am not a fan of the huge rhetorical flourish as the introduction to the prosecution opening speech. Generally, I don’t think it is effective in any form of litigation, but particularly so in jury trials. American jurisprudence contains a treasure trove on prosecutorial excesses which is not surprising given that the Land of the Free also produces Judges who carry and produce guns in Court, and in a number of famous cases use their weapon to threaten Counsel. There are a few times in my long judicial career when a Taser would have come in handy and not only for an unsuspecting member of the Court of Appeal walking down George Street! Crying is usually not called for. One of those American examples concerns a prosecutor who cried during closing argument, and this was a ground of appeal. One of his colleagues remarked;

“He is an emotional guy and he teared up while talking about the last moments of the murder victim’s life. The Court of Appeal found that prosecutorial crying was an improper appeal to passion and emotion, but it was a harmless error in this case. It seemed odd to me that crying would be deemed improper — I knew defence attorneys who cried in almost every closing argument!”

At the start of a very lengthy Planning Appeal that I heard in Brisbane, one of my colleagues asked me who the lead counsel in the case were.  When I told him, he advised me to “swallow a thesaurus.”

Sure enough, in the opening of what was a case about land use and economics, not some high profile criminal case, counsel for the appellant quoted from the “Charge of the Light Brigade.”  He said (with appropriate gravitas):

 “Half a league, half a league,

Half a league onward,

All in the

Valley of Death rode the five hundred.”

Immediately, from the other side of the bar table, came the correction: “six hundred!”  Thankfully, I was not asked to rule, as I was immediately thinking back to my Tennyson at school that it was “a thousand.”

It might work in the opening of a home invasion case involving bikies invading the clubhouse of other bikies, although of course in these enlightened times such a crime would be impossible.

But seriously, I think rhetoric, particularly of the literary and poetic kind, has a very limited role to play in the opening.  Also I do not think juries are impressed by esoteric references to physics or pure mathematics where these disciplines have nothing to do with a case, and are more designed to show off the prosecutor’s knowledge.  The early research into juries conducted by Professor Warren Young and his colleagues in New Zealand in the late 1990’s, clearly showed that at this point in the trial, the jurors want to know most of all what the real issues are in the case, and are unimpressed by show offs from either side of the bar table.

Of course, there are always exceptions.  When I was a young Judge, green and inexperienced, I always welcomed Todd Fuller quoting Shakespeare to me, and particularly if the jury was present:

 “A Daniel come to judgment

Yea a Daniel

O Wise young judge

How I do honour thee.”

He’d probably say now:

“First, let’s kill all the judges.”

The opening should be the model of brevity when it comes to the law.  Tell a jury what has to be proved: one, two and three.  Don’t talk to them about the elements of the offence. It is frustrating and pointless when, immediately after I have given the jury basic opening directions about their role and the onus and standard of proof, the prosecutor does exactly the same thing. 

All of you have your own prepared notes which will guide the way in which you approach the case, particularly the features of the prosecution that are common to all prosecutions.   However, it is always important to listen and to be prepared to modify your standard approach in accordance with the direction that the trial is taking. It is clear to the Judge and probably also the jury, when a prosecutor is simply “rolling the arm over” and not attending to the particular case.

It is often of considerable assistance at this stage to provide the jury with materials, provided, of course, this is by agreement.  In fraud cases, particularly lengthy, complex cases, a jury book of documentary exhibits is essential.  Of course in Brisbane, now, there is facility for each jury to receive a USB stick and to view documents on computers in court and provided to them. In the regions we have no such luxury and often after rely on the prosecution to provide not only the Crown case but also the technology to understand the evidence.  

A copy of the charge or charges is essential, and describing the scene by reference to photographs and plans can be very helpful.  PowerPoint can be a useful tool for this limited purpose, but I am not entirely convinced by PowerPoint openings or, indeed, closings.  I know how much work goes into them, but the slides are likely to distract the jury; and I think everyone agrees that simply reading from the slide is the quickest way to disengage from the audience. 

As I have said, the jury at this point will want you to focus on the real issue or issues in the case.  In most cases in the District Court this will be obvious.  Do not however attempt to anticipate defences at this stage, as it can significantly disable your case before it starts.  This has happened before me on a number of occasions, particularly in relation to s 24 of the Criminal Code.  

In one of the examples discussed in the New Zealand research, as a result of the prosecution opening in a case involving violence, it was not until the final addresses at the end of three weeks, that the jury realised that the critical issue in the case was intention and not the insanity of the defendant. 

(d) Presenting the case

Again, efficiency and preparation should be your guide.  Prosecution witnesses, indeed all human beings, can be irritating.  Being a witness is a difficult experience, especially for a lay witness.  Showing irritation or even anger when a witness does not respond as expected is poor practice.  Back in the dark days, when private counsel held commissions to prosecute and frequently appeared on both sides of the bar table, I had an experience which burned into my brain the importance of this point.  The case involved three and a half days of s 93A tapes and pre-recorded evidence, including one and a half days of turgid cross-examination over which I presided.  The two barristers involved were senior, and, to put it mildly, did not get on.  Each irritated the other.  Having sat through the pre-recording; I then heard all the evidence again with the jury at the trial.  On day four, the prosecution called its first live witness — the mother of the complainant.  She was angry and not very bright — a red light to take care.  The prosecutor led her through her evidence late in the afternoon, becoming increasingly irritated and angry with her.  Finally, he rebuked her for not paying attention to his questions, causing her to give some highly prejudicial evidence which had been excluded by agreement.  The trial had to be done again and, yes, I was the trial judge once again.

The presentation of a case has features of telling the prosecution story.  Good advocacy will follow if you have a planned presenting of the case and you stick with it. Care must always be taken to not patronize the jury and to not in any way speak down to them. In my experience, when this happens, juries quickly pick up on it and they do not like it and will hold the offending barrister (or Judge) to account. This is again borne out by jury research.  Although almost certainly exaggerating, a very senior barrister once told me that for every hour he spent in court, he spent two hours preparing.  As a young, overconfident solicitor I quickly worked out in my head that this could only happen if he had about four hours sleep.  I knew also that he had a real liking for the drink, so when did he fit that in? 

Re-examination, particularly of key witnesses, can be effective to clarify some confusions that may have arisen in cross-examination.  However, re-examination is not compulsory.  My experience is that the best prosecutors rarely re-examine.  In recent times, it seems to happen much more frequently and for no apparent forensic reason.  There is a danger (realised in cases in which I have been involved) that unfocused, unnecessary re-examination will detract from your case and strengthen your opponent’s case. 

(e) Cross-examination of the defendant 

In my experience, with most witnesses there are usually one or two areas that are amenable to effective testing by cross-examination.  The long discursive, unfocused cross-examination is never effective with juries, in my experience.  Experienced defence counsel will sit quietly if a prosecutor goes round and round asking repetitive questions, as they know that the jury will not be impressed.  I had to stop a prosecutor once by saying, in effect, “You have now asked the same question at least six times, and you’ve got the same answer, move on,” which led someone on the jury to say “Thank God for that!”. 

Sometimes, of course (but rarely), a defendant will present you with a gold mine for a cross-examination.  Tim Ryan prosecuted an armed robbery before me in Ipswich.  The robbers had parked a stolen car in the Redbank Plains shopping centre carpark, and audaciously robbed a business owner in the centre in the daytime whilst armed with guns.  There were many witnesses.  The robbers were seen exiting the shopping centre and driving away in the stolen vehicle.  Only one went to trial and he approached his defence in a novel way.  Whilst on remand, he met a fellow who was awaiting sentence for 11 armed robberies.  Working on the premise that one more would make no difference to his future, this fellow was called by the defendant and proceeded to take responsibility for the Redbank Plains robbery.  Unfortunately, he had not been well-briefed by the real robber, the defendant, probably because he was off his face on drugs at the time and could not recall much.  The particulars of the robbery, including the behaviour of the robbers before and after the event, was meticulously established by Tim and not challenged by the defence.  When the only defence witness was cross-examined, Tim carefully took him through each step, and you could see him trying to guess almost every answer — was it a shotgun or a handgun? Was it jewellery or money or a mixture of both? Who was wearing the balaclava and who had on the Humphrey bear mask? He got about half the answers right.

By the time Tim got to the exit from the carpark, not only were the jury snickering, but so was the defendant.  Tim asked our hero where the vehicle was parked.  He didn’t have a clue so Tim persisted and handed him a plan of the carpark which was huge and asked him to mark with a black highlighter exactly where the car was parked.  This took the witness some time.  There was uneasy silence in the court.  When the plan was handed back to Tim, he simply held it up at the jury — the whole of the carpark had been coloured in black — tendered it, and sat down! 

(f) The final address

Much of what I have said earlier applies to the final address, which is perhaps the most important part of the case.  Again, I have seen PowerPoint in presentations which hugely impressed me but, I suspect, not the jury very much, as their focus was on the prosecutor who was in different direction to the screen.  At this stage there is more scope for rhetoric but again limited.  I don’t think humour works well with the jury either.  If I have learned one thing about juries over my 46 years in the criminal law, it is how seriously they take their responsibilities.  It is a serious business and very rarely does humour help and neither does sarcasm.  There are many examples in the jurisprudence where prosecutors have gone too far, on rare occasions leading to a miscarriage of justice.  In my 22 years as a judge, I can count on the fingers of my hands the number of truly perverse verdicts, and all of them are not guilty, and some came about because of an over-enthusiastic and arrogant prosecutor.

(g) Sentencing

This is a critical role for you as prosecution advocates. With the legislative repeal of Barbaro you are again more able to assist the court when it comes to analysis of comparable authorities. Again, I think brevity is the most useful guide for effective advocacy in the sentencing process. A long detailed analysis of a decision may be called for if it is decisive, but that is rarely the case as no one case is alike. A technique that I appreciate harks back to the old days of the DPP Schedules. Instead of a schedule containing every CA decision on the topic, some prosecutors select the most relevant and present that in schedule form which can be a very useful tool. I think single Judge decisions are of limited value unless the offence is very unusual or only recently established.

You should of course have a firm grasp on sentencing principles and be prepared to meet defence submissions that go to mitigation. The practice has improved, but in the past expert reports are handed up by the defence which are sometimes of little assistance, but the court hears nothing from the Crown side which is not helpful particularly where vexed issues such as “moral culpability” are involved. I have noticed a distinct improvement in this area, where the prosecutor will challenge the weight of opinions expressed often on the basis of a history taken only from the offender.

I greatly appreciate receiving in advance schedules of fact, criminal histories etc as this greatly facilitates the sentencing hearing. Although only remotely related to the topic, I also appreciate being informed in court at the start of the hearing if victims’ families are in court, who they are and where they are in the gallery. I sometimes speak to them in open court, but is simple courtesy to acknowledge their presence and be conscious of what you say in open court.

Conclusion

Advocacy is a very human process. It involves an expert communicating to lay people often complex facts and law. It is good to remind yourself frequently that you are privileged to have such a vital role and that humility and clarity will be what a jury appreciates most. I know it is difficult in these days of management speak and cost cutting but it is essential if you are to prosper in your role as prosecutor. In the Victorian OPP guidelines there is quite a bit of the weasel wordplay that people like Don Watson deplore, but under the very weasel wordy heading “Advocacy Competency Framework” the basics are there although sadly described under “Vision and Values”! That is to act fairly and with integrity, respect others and strive for excellence. My professional life has largely been enriched by prosecutors who exhibit those features when they come before the Court. I would also add “listen carefully at all times”.

Years ago, I was in Judge Maguire’s court awaiting my turn. The case before him involved unspeakable conduct with a fox terrier on the steps of a South Brisbane boarding house; near where Southbank now is. The barristers were both colourful characters. Leon Taeffe from the private bar was the prosecutor. He referred his Honour to a comparative involving a horse as the complainant, to which his Honour commented; “that is a much bigger enterprise”. Leon thought he said; “that was a much bigger end to prise” and started to laugh which brought a firm rebuke from the Judge. Judges should listen also. Judge Maguire had not picked up that the defendant was very hard of hearing. His Honour proceeded to give one of his trademark sentencing remarks which included reference to all sorts of complex words such as “condign” and “egregious” and after about 30 minutes by which time he had imposed a modest fine, he asked the defendant if he understood. He was met with no response. Counsel reminded his Honour of the hearing problem so the whole judgment had to be repeated with the foxie’s friend equipped with an ancient set of court hearing aids.

It has been an honour to speak to you. I wish you all well in your work on behalf of the ODPP in Queensland.

John Robertson

On 21 April 2017, the Bar Association of Queensland held a dinner to mark the appointment of the Honourable Susan Kiefel AC as Chief Justice of Australia. The event took place at the Queensland Art Gallery Watermall. 

 

Trial: Robinson v Lorna Jane Pty Ltd — Day 7

HIS HONOUR: Forgive me, Ms McCarthy. Ms McCarthy, forgive me. What does “active wear” mean?‑‑‑Active wear. That’s the Lorna Jane ‑ ‑ ‑

HIS HONOUR: I used to be a runner, you know. Years ago I was a runner?‑‑‑That’s the ‑ ‑ ‑

My knees are gone now.

………

WITNESS: That’s the Lorna Jane clothing. So that’s just a term we use. Like, you would have business attire; sleepwear, your pyjama ‑ ‑ ‑

HIS HONOUR: Yes?‑‑‑Active wear was Lorna Jane clothing.

Okay?‑‑‑Yeah. It’s just a term we used.

MS TRESTON: I’m a bit worried we’ve got to day 7 and your Honour doesn’t know what active wear is.

---

“What is up?”

Briggs v State of New South Wales [2017] HCATrans 109

EDELMAN J: If Mr Briggs had walked into the detective inspector’s office with a gaping bullet wound and blood dripping on the floor, it would undoubtedly be a breach of duty if the detective inspector did not say, “What is up?”

MR WALKER: Quite so …

---

“I tender my friend”

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd; Maxcon Constructions Pty Ltd v Vadasz & Ors [2017] HCATrans 112

GAGELER J: … Mr Walker, you have a pretty good point here by the presence of the other case.

MR WALKER: I am sorry, I am – – –

GAGELER J: Your point about the importance – – –

MR WALKER: Yes, yes.

GAGELER J: – – – of the matter is demonstrated by the existence of the other special leave application.

MR WALKER: Yes, I tender my friend, Mr Doyle, as an exhibit as it were. Yes, I did not tell him I would but – – –

---

“Person-fully”

Smith v The Queen; R v Afford [2017] HCATrans 40

MR ODGERS: Of course, your Honour. I am just attempting to respond to the proposition that because you know there is something in the suitcase, the element of intention is met. I just — you can see I am struggling with this. I am saying that cannot be enough.

KIEFEL CJ: We know you are struggling, Mr Odgers.

MR ODGERS: I will cease to struggle. I have attempted, manfully, to respond to that.

NETTLE J: That is gender normative, Mr Odgers.

MR ODGERS: Yes. Gender — I have struggled personally — whatever the word is — “person-fully”.

---

Eminem in the New Zealand Court

Eminem’s ‘Lose Yourself’ was recently played in a Wellington court during a copyright case concerning music used in a National Party commercial.

Interestingly, the title of the music used in the commercial was entitled ‘Eminem-esque’.

Click here to read an article about the case, with video footage from the proceedings.