Faris v Savage (No 2)
[2020] ACTSC 219
•11 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Faris v Savage (No 2) |
Citation: | [2020] ACTSC 219 |
Hearing Date(s): | 15 June 2020 |
DecisionDate: | 11 August 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [62] |
Catchwords: | APPEAL – Appeal from Magistrates Court – single ground of appeal – whether appellant’s former solicitor advocate incompetent – whether incompetence gave rise to miscarriage of justice |
Legislation Cited: | Building Act 2004 (ACT) Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) r 5052 Magistrates Court Act 1930 (ACT) ss 274, 276 |
Cases Cited: | Adapt Constructions Pty Ltd v Whittaker and Luff [2015] ACTSC 188 Ahmu v The Queen [2014] NSWCCA 312 Bajramovic v Calubaquib [2015] NSWCA 139 Bellgrove v Eldridge (1954) 90 CLR 613 Chouman v Margules (1993) 17 MVR 144 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Faris v Savage [2019] ACTSC 339 Fox v Percy [2003] HCA 22; 214 CLR 118 Goreski v de Costa [2014] ACTSC 233 Jowett v Kelly [2008] NSWSC 1009 Malek v Remondis Australia Pty Ltd [2015] ACTSC 135 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 R v Birks (1990) 19 NSWLR 677 Stekovic v Polyseal Waterproofing Technologies Pty Ltd [2013] ACTSC 195 Stevens v McCallum [2006] ACTCA 13 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Tully v The Queen [2016] ACTCA 4 Xu v R [2019] NSWCCA 178 |
Parties: | Rabea Hatem Faris (Appellant) Gail Savage (Respondent) |
Representation: | Counsel J Moffett (Appellant) J Redwood with P Bindon (Respondent) |
| Solicitors Snedden, Hall & Gallop (Appellant) Aulich Law (Respondent) | |
File Number(s): | SCA 47 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 24 August 2018 Case Title: Savage v Faris Citation: [2018] ACTMC 17 |
LOUKAS-KARLSSON J
Introduction
The appellant in this matter was the defendant in proceedings conducted in the Magistrates Court in 2018. Following a contested hearing on 24 August 2018 Magistrate Fryar entered judgment for the plaintiff, who is the respondent in in this appeal, in the sum of $107,819.24 plus costs to be agreed or assessed.
By way of application in proceeding dated 13 August 2019, the appellant sought leave to appeal the decision of Magistrate Fryar. Legal error by the learned Magistrate was not alleged. The basis of the appeal is that the appellant’s former solicitor had been incompetent in the Magistrates Court proceedings to such a degree that it had caused a miscarriage of justice. The application for leave to appeal, an application to join the appellant’s former solicitor (IG) to the proceedings, and the application to adduce further evidence on appeal was heard by Burns J on 28 October and 6 December 2019.
Burns J delivered his reasons on 6 December 2019, dismissing the application to join IG as a party to the appeal, but allowing the appeal to proceed and for further evidence to be adduced pursuant to s 276 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) to a limited extent, that being the quantum of damages associated with the removal of the appellant’s defective building works from the respondent’s home: Faris v Savage [2019] ACTSC 339 (Faris (No 1)).
The appellant now relies upon a single ground of appeal contained in his third further amended notice of appeal dated 25 October 2019, being “that IG (former practising solicitor) wholly and incompetently legally represented [the] appellant during the case management process and at the hearing of the case and generally.”
It was noted by Burns J in Faris (No 1), as noted above, that the present appeal does not allege that any error on the part of the Magistrate has occurred, however there is authority for the proposition that a court of appeal may set aside a decision and order a new trial where there has been a miscarriage of justice as a result of the incompetence of counsel: Faris (No 1) at [13]-[17].
Further evidence on appeal
In the Magistrates Court proceedings, the respondent had adduced an expert’s report of Barker Harle dated 3 December 2015 under the hand of Mr Paul Fathers (the Fathers Report). It provided an assessment of the costs of both removal and rectification works at the respondent’s home. The costs awarded by the Magistrate in those proceedings with respect to damages were determined on the basis of the Fathers Report. No alternative expert report was adduced by the appellant in the Magistrates Court proceedings for the purpose of traversing the costings which had been calculated in the Fathers Report.
The further evidence on this appeal comprises an expert report of Capital Building Consultants commissioned by the appellant and dated 18 July 2017, produced under the hand of Mr Damien Maloney (the Maloney Report). It is directed only toward the quantum of damages associated with the removal of defective landscaping and renovation work which was performed by the appellant at the respondent’s home in 2015.
The crux of the dispute between these two reports is the quantum of damages associated with the removal of these works. The appellant clearly accepted liability for both the removal and the rectification of the works (T 36.20-23). The Fathers Report assesses the costs of removal at $60,780.17. The Maloney report assesses the costs of those same works at $16,148.48. The difference between the two being $44,631.69. In Faris (No 1) Burns J stated (at [22]):
If accepted, the evidence of Mr Moloney is capable of resulting in a significant variation to the damages awarded by the Magistrate. The proposed evidence of Mr Moloney could not, however, justify the setting aside of the finding on liability made by the Magistrate. At best, the evidence of Mr Moloney could justify a remittal of the matter to the ACT Magistrates Court for a rehearing restricted to quantum, based on the liability findings made by the original Magistrate.
Principles applicable to civil appeals
An appeal to this Court from a decision of the Magistrates Court in civil proceedings is a rehearing, the general powers being set out in r 5052 of the Court Procedures Rules 2006 (ACT). The principles which govern an appeal by way of rehearing are well known. In Fox v Percy [2003] HCA 22; 214 CLR 118 Gleeson CJ, Gummow, and Kirby JJ stated (at [25]):
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect".
(Citations omitted)
The principles applicable on appeal have been adopted in a number of decisions of the Court with respect to appeals brought pursuant to Pt 4.5 of the Magistrates Court Act: see Stekovic v Polyseal Waterproofing Technologies Pty Ltd [2013] ACTSC 195 at [7]; Goreski v de Costa [2014] ACTSC 233 at [7]; Malek v Remondis Australia Pty Ltd [2015] ACTSC 135 at [13].
The Court may have regard to the evidence which was given in the Magistrates Court proceedings, and in addition, any further evidence which this Court in its discretion determines to receive: s 276 Magistrates Court Act. The nature of an appeal by rehearing was described by Refshauge J in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 in the following manner (at [78]):
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions…
Orders sought
If the appeal is upheld the appellant primarily seeks that the order made by the Magistrate on 24 August 2018 be set aside and the matter be remitted to the Magistrates Court.
The Faris Affidavit
The preliminary issue which required determination in this matter was whether an affidavit of the appellant Rabea Faris dated 13 August 2019 (the Faris Affidavit) was properly before the Court on the substantive appeal. The affidavit had been read in support of the application to adduce further evidence before Burns J in Faris (No 1) but was not included in the settled index of appeal papers in relation to this matter, nor had an application been made for that affidavit to form part of the further evidence in these proceedings. The Faris Affidavit was not included in the orders made by Burns J when the application to adduce further evidence was allowed: Faris (No 1) at [25].
The appellant sought to read the affidavit into evidence in the appeal proper on the basis that it includes the appellant’s assertions of fact as to the basis upon which he claims that he did not receive competent legal representation (T 4.29-35). It was submitted that the affidavit should form part of the evidence on the appeal (T 6.25-35).
The respondent objected to the affidavit forming part of the evidentiary record on appeal. This was principally on the basis that it did not form part of the appeal papers, and the respondent had proceeded on that basis (T 7.40-47). The respondent submitted that the Faris Affidavit had been read in Faris (No 1) only for the purpose of the application to adduce further evidence (T 8.35-40). Additionally, the respondent submitted that the affidavit was unnecessary given that the test to be applied in respect of the incompetence ground was an objective one, and as such Mr Faris’ subjective assessment of IG’s competence, or lack thereof, had little relevance (T 14.5-25). The respondent indicated that if the affidavit were to be read, an adjournment would be sought as a matter of procedural fairness so that further evidence could be gathered in order to assist in the cross-examination of Mr Faris (T 23.1-15; 27.1-10).
The appellant subsequently instructed his counsel to withdraw the application to read the affidavit and this issue did not fall for determination (T 29.20-35). The appeal then proceeded on the basis that the Faris Affidavit did not form part of the evidentiary record on appeal, in light of the approach adopted by the appellant.
Miscarriage of justice
The primary issue to be determined is whether the legal representation provided in the Magistrates Court by the appellant’s former solicitor was so incompetent that it could be said to give rise to a miscarriage of justice. The appellant identified a number of issues which were submitted to be indicative of IG’s incompetence to the degree necessary to establish a miscarriage of justice. The appellant did not cavil with the proposition that this was a difficult appeal. It was accepted that the scope of the ground of appeal is a narrow one, and that the bar which must be met in order to demonstrate a miscarriage of justice as a result of the incompetence of counsel is particularly high in the context of both criminal and civil appeals (T 33.40-46). Counsel for the appellant conceded that was this a difficult test, but submitted that it was not one which was “insurmountable” in civil cases (T 35.25-28).
Submissions
Appellant’s submissions on alleged incompetence and failure to call expert evidence
The appellant referred to R v Birks (1990) 19 NSWLR 677 (Birks), Chouman v Margules (1993) 17 MVR 144 (Chouman), Bajramovic v Calubaquib [2015] NSWCA 139 (Bajramovic), TKWJ v The Queen [2002] HCA 46; 212 CLR 124 (TKWJ), Nudd v The Queen [2006] HCA 9; 80 ALJR 614 (Nudd), and Jowett v Kelly [2008] NSWSC 1009 (Jowett) in relation to the principles relevant to incompetence.
The appellant drew the Court’s attention to the defence and counterclaim filed in the Magistrates Court on 22 June 2016, and in particular the following extracts from Paragraph 15 of that document:
The Plaintiff needs to obtain an experts report attesting to the Plaintiffs claims. The Plaintiff has not provided such an experts report dealing with the particulars as enunciated in Paragraph 15.
…
The plaintiff may choose to now obtain an expert report, dealing with the particulars. The plaintiff should have obtained such a report at the time when the defendant was expelled from the site, not now.
If the Plaintiff chooses to obtain such a report, the Defendant wants to obtain his own independent report about the work. The Plaintiff must now consent to the Defendant entering onto the site in order to obtain such a report. If the Defendant is not allowed onto the site to obtain an expert report, the expert report will be of no relevance.
The appellant submitted that it was “hardly surprising” that in a building case such as this that the question of expert evidence is paramount, and that this indicated a willingness or a necessity to traverse aspects of the plaintiff’s expert report with alternative expert evidence (T 37.45-47; 38.1-16).
The appellant submitted that the entirety of the transcript of the proceedings in the Magistrates Court would need to be appraised by the Court in order to appreciate the “general flavour of how the matter was conducted” (T 40.1-5). Nevertheless, the appellant brought the Court’s specific attention to four extracts from the transcript of those proceedings which were submitted to be the most egregious examples of the solicitor advocate’s alleged incompetence (T 43.26-31).
The first of those extracts was the following submission by the solicitor advocate (MCT 2.20-25):
IG: …Your Honour, I envisage that my friend here, the plaintiff will put their case and I suppose this matter could then resolve probably today, because I’m foreshadowing at the end of the plaintiff’s evidence, moving for a summary dismissal of the matter. We’re confident that, that will be successful, but if not, I envisage we could possibly get this matter resolved by today. I don’t envisage running two days.
Her Honour: All right. We’ve got two days, so (indistinct).
Counsel for the Plaintiff: Your Honour, we’ve not had any expert reply evidence, so I’m not sure on what basis the summary dismissal application is going to be put, but I wouldn’t be confident of finishing today, simply because there’s quite a bit of evidence to get through from the plaintiff, in terms of describing everything that’s occurred, so that will take some time.
The appellant submitted that it was “unsurprising” that counsel for the plaintiff in the Magistrates Court “was disillusioned as to how a summary dismissal application could be put”. The appellant noted that an application for summary dismissal was never put throughout the course of that hearing (T 38.20-40).
The second extract of the transcript relates to IG’s cross-examination of the plaintiff in relation to signatures which the defendant alleged were forgeries. The following exchange took place (MCT 31.35-45; 32.1-27):
IG: Ms Savage, I’d like to take you to page 2 of the affidavit there. Can you see the signature of the defendant there? --- Yes.
I’d like you to first of all look at tab 3. Can you see the signature of Mr Faris there? --- Yes.
They’re not the same are they?
Counsel for the Plaintiff: Your Honour - - - ? --- I’m not a writing expert.
IG: It’s not a question of being a writing expert your Honour. She can just - - -
Her Honour: It probably is.
IG: She can express the view.
Her Honour: No you’re asking her to express an opinion.
IG: She can express her opinion about - - -
Her Honour: She can’t, she’s not an expert.
IG: I don’t think you have to be an expert your Honour. It’s patently clear.
Her Honour: With the greatest of respect, you do. If you’re asking her to make, offer an opinion as to whether it is the same signature as the defendant’s signature, that’s not admissible. That’s an opinion.
IG: I think she’s entitled to express her own views about whether there are similarities. One doesn’t have to be an expert to express an opinion about this matter because the signatures are so glaringly different.
The appellant submitted that this, and the exchanges immediately afterwards demonstrate that the solicitor was incompetent in the sense that he did not have a proper, or any understanding of procedure or the rules of evidence, and in particular the differences between lay evidence and expert evidence (T 41.1-5).
The third extract of the transcript relates to the examination in chief of the defendant and a witness whom the solicitor was intending to call (MCT 93-95). The following exchanges are of note:
Her Honour: Which man, sorry? --- This man, DL.
Is he a witness?
IG: He will be, yes, your Honour.
Her Honour: Well, why is he sitting in the court?
IG: Sorry, I forgot your Honour.
Her Honour: Are you an experienced practitioner, IG?
IG: Yes.
Her Honour: Yes.
Counsel for the Plaintiff: We have been given no notice that this is going to be a witness your Honour.
…
Her Honour: Well I think you’ve got a problem with the rules anyhow, IG, because if you’re purporting to call DL as some sort of expert witness - - -
IG: Yes.
Her Honour: Have you served a report?
IG: No, but he is an expert.
Her Honour: Well - - -
IG: Sorry.
Her Honour: With the greatest of respect, what do the rules say about experts and expert evidence?
IG: Yes your Honour. DL is an engineer and he has qualifications from university.
Her Honour: That’s not the question I asked.
IG: Yes, I accept that. I haven’t tendered an expert’s report.
Her Honour: How can you call him then?
IG: Well, I was initially intending to call DL as a character witness but – and in the course of giving evidence about the defendant’s character, I was going to get him to comment about some of the other work which DL has examined, has seen, in the course of Mr Faris’s employment. So it was primarily in the course of a character witness that I was proposing to call DL, but it just so happens that DL is an expert - - -
Her Honour: You’re still not answering the question that I’ve asked. You haven’t complied with the rulings.
IG: No, that’s right, you Honour. I accept that.
…
In the appellant’s submission the transcript reveals concerning and fundamental issues with basic procedure and the applicability of the rules of evidence on the part of the solicitor advocate (T 42.15-45; 43.1.15). It was submitted that it would be expected, where there is a dispute of fact as to loss and damage due to work performed and in circumstances where a plaintiff has served expert evidence upon another party, that the other party would properly call evidence in response, and that when examined objectively there could be no other explanation, hypothesis, or inference that could be drawn from that omission, other than incompetence (T 43.35-45). It was submitted that in light of the service of expert evidence upon the defendant of expert reports, there could be no reasonable forensic advantage in not adducing similar evidence in response.
The fourth extract relates to the closing submissions of the solicitor advocate in which submissions were made to the effect that the Building Act 2004 (ACT) (Building Act) and the relevant regulations could not apply to the matter given that the defendant was not a licenced builder. The solicitor advocate then went on to challenge the plaintiff’s expert evidence in the following terms (MCT 139):
IG: …[T]he expert did not point to any particular guidelines, standards in order to base that finding. Now, a decision maker to make a decision about the particular issue needs to be able to point to some evidence in order to substantiate that finding.
Her Honour: He is not a decision maker, IG.
IG: I believe that the expert has made decisions - - -
Her Honour: He has given opinions.
IG: I believe that to be a decision which is subject to review.
Her Honour: You might. This is not the Migration Tribunal.
The appellant submitted that this exchange demonstrated a further fundamental misunderstanding of procedure and expert evidence (T 45.37-40).
Respondent’s submissions on alleged incompetence and failure to call expert evidence
The expert reports
The respondent’s “fundamental submission” was that given the importance of finality, and the length and history of the proceedings that there ought not be a remittal to deal with a contest on expert evidence unless it can be demonstrated to a high probability that the result below would be materially different if the Maloney report were available (T 51.15-20). It was submitted that this consideration should be weighed in the context of the general overriding objectives of civil procedure as elucidated in s 5A of the Court Procedures Act 2004 (ACT) (Court Procedures Act).
Section 5A of the Court Procedures Act sets out the overriding purpose of the civil procedure proceedings in this jurisdiction and relevantly provides:
Main purpose of civil procedure provisions
(1) The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes—
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the main purpose includes the following objectives:
(a) the just resolution of the real issues in civil proceedings;
(b) the efficient use of the judicial and administrative resources available for the purposes of the court;
(c) the efficient disposal of a court’s overall caseload;
(d) the timely disposal of civil proceedings;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil procedure provisions must be interpreted and applied, and any power or duty imposed by them (including the power to make rules) must be exercised or carried out, in the way that best promotes the main purpose.
(4) The parties to a civil proceeding must help the court to achieve the objectives.
It was submitted that it was so improbable that the evidence contained in the Maloney Report would be preferred over the Fathers Report that it was highly unlikely that it would give rise to a material difference in outcome or its absence result in a miscarriage of justice (T 51.30-35).
It was submitted that due to the “fundamental flaws” in the Maloney report, that even if it were technically admissible, that it could only be given minimal weight when assessing whether there had been a miscarriage of justice (T 74.19-26). Those flaws or weaknesses in the Maloney Report when compared to the Fathers Report were submitted to be (RWS [29]):
(a) The vastly greater experience of Mr Fathers compared to Mr Maloney;
(b) The specific experience of Mr Fathers being relevant to the work in dispute in this matter and lack of any such detail in the report of Mr Maloney;
(c) The failure of Mr Maloney to describe the basis for the alternative costs in his report (other than a general reference to an “industry standard”) compared to Mt Fathers’ detailed explanation of the methodology and assumptions for the costs used in his reports including use of the Rawlinson’s Constructions Costs Guide. It was submitted that the Mr Maloney’s conclusions were in a “wholly conclusory form (T 54.5-10); and
(d) That Mr Maloney’s report only provides alternative costings for the removal of the appellant’s faulty work, whereas the Fathers Report also assessed the cost of completing the works properly, and that the Magistrate had accepted that the appropriate quantum of damage was the addition of those two amounts in accordance with Bellgrove v Eldridge (1954) 90 CLR 613 followed by Burns J in Adapt Constructions Pty Ltd v Whittaker and Luff [2015] ACTSC 188.
The respondent submitted that this matter involved a “highly unusual application of principle”. This, it was submitted, was not only due to its application in the context of civil proceedings, but also in circumstances where the ground of incompetence is not being raised so as to set aside the decision in its entirety, but rather only in respect of part of the aspect of quantum (T 55.30-42). The respondent submitted that the matter lies “at the outer edge” of the application of the principle (T 55.44-45).
The ground of appeal
The respondent submitted that incompetence of counsel is not a ground of appeal, but one in furtherance of establishing a miscarriage of justice. It was submitted that not only was it difficult to demonstrate that the solicitor advocate was flagrantly incompetent, but even if it were established, it must be shown that the incompetence led to a miscarriage of justice (T 56.1-15). It was submitted further that the authorities were clear that the adversarial system of litigation depends upon “deference towards the forensic decision of trial counsel”, and avoiding the “second-guessing” of those decisions in an appellate setting (T 56.25-35). It was submitted that on this appeal the concern is not with “incompetence at large” but rather “the demonstration of extreme incompetence linked to the specific adverse consequence that the appellant says flowed to his profound disadvantage” (T 58.30-35).
The Magistrates Court proceedings
It was submitted that regardless of whether IG’s understanding of the intricacies of the rules of evidence was deficient in some respect or not, the transcript of the Magistrates Court proceedings did not indicate that IG had held a mistaken belief that the appellant was unable to call his own expert. It was submitted that the material in the pleadings suggests that IG would have at least appreciated that be could call expert evidence, and as such the only logical inference is that a forensic decision was made not to call expert evidence (T 61.1-15).
The respondent characterised the first extract of the Magistrates Court proceedings as being an enthusiastic, or zealous submission made at the commencement of proceedings for potentially strategic reasons (T 59.1-5). It was submitted that the submission could not be linked to the specific adverse consequence alleged, nor did it constitute ‘flagrant’ incompetence (T 59.30-35). The respondent’s fundamental submission was that in order to give rise to a miscarriage of justice, there needs to be flagrant incompetence with the specific consequence which is said to give rise to the miscarriage of justice (T 60.35-45).
The respondent characterised the second extract as a “less than complete” understanding of the rules of evidence, but one which was “wholly delinked” from the specific objection concerning expert evidence as to demolition costs. It was submitted that the submissions of IG in relation to the alleged forgeries were plainly made on the instructions of the appellant (T 60.1-10).
In respect of the final extract the respondent submitted that IG’s submissions with respect to the Building Act may indicate that IG misunderstood how principles of error of law might operate in that context, but not to such a degree to give rise to a miscarriage of justice (T 61.30-37).
The respondent proffered two possible reasonable explanations as to why IG may have made a forensic decision not to call expert evidence. It was submitted that it was possible that an advocate could take the position that the best forensic course was not to adduce one’s own expert, but rather seek to undermine the expert evidence of the other party by way of cross-examination or objection. It was submitted that this would be an entirely defensible course to take, irrespective of whether it was in fact implemented effectively (T 62.1-25). The respondent submitted that a second reasonable explanation for the decision taken could be the cost of calling that expert witness compounded by the practical difficulties associated with gaining access to the site. The respondent accepted that this submission was speculative and was capable of being dismissed if it were contrary to evidence from the appellant or IG (T 63.4-15).
The authorities and comparable cases
The respondent submitted that the facts of the present matter could be distinguished from Chouman, Jowett, and Bajramovic and did not assist the appellant’s position. It was submitted that there were critical differences with respect to both the factual circumstances of those cases, and the specificity and probative value of the evidence which had been adduced to demonstrate the incompetence of counsel in those cases (T 65-68).
The appellant did not cavil with the proposition that the authorities were, on their facts, “wholly distinguishable” from the facts of the present matter (T 69.45-47; 70.1-5). Nevertheless, the appellant submitted that the cases set out the principles upon which this matter may be approached (T 70.5-10).
Consideration
A review of the relevant principles
In the seminal authority R v Birks (1990) 19 NSWLR 677, the NSW Court of Criminal Appeal set out the principles with respect to appeals on the basis of alleged incompetence of counsel (at 685):
1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3. However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of the ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable to do so, to attempt to define such cases with precision. When they arise they will attract appellate intervention.
In Chouman v Margules (1993) 17 MVR 144, in comments highlighted by Burns J in Faris (No 1) to be “strictly dicta” Kirby P stated that a mistake or unwise decision made by an advocate in the conduct of a trial is not of itself a justification for the setting aside of a decision to avoid a miscarriage of justice. His Honour underlined that if this were the case “in a criminal trial where liberty and reputation were at stake, it is clearly so in civil trials” (at 149):
In the Court of Criminal Appeal, it has been recognised that inadvertence on the part of an advocate, or plain incompetence in the presentation of a criminal trial, can in certain circumstances require the intervention of the court in order to avoid the risk of a miscarriage of justice. See eg R v McCall (1920) 20 SR (NSW) 467 at 472 ; 37 WN (NSW) 189 at 192 (FC); R v Birks (1990) 19 NSWLR 677 at 684 (CCA); Re Knowles [1984] VR 751 (FC) and R v Ensor [1989] 1 WLR 497 (CA). This jurisdiction is, however, exercised most cautiously. As Gleeson CJ pointed out in Birks (above) at 68 it is exercised with a full appreciation of the way in which ``the system of criminal justice operates'’. The mere fact that a mistake or unwise decision in the conduct of a trial is made on behalf of a client by an advocate will not, without more, justify the setting aside of a conviction to avoid a miscarriage of justice. If this is so in a criminal trial where liberty and reputation are at stake, it is clearly so in civil trials. See eg Burchett v Kane [1980] 2 NSWLR 266 at 268 (CA); Seaton v Burnand [1900] AC 135 at 141 (HL); Skrzypkowski v Silvan Investments Ltd [1963] 1 All ER 886; [1963] 1 WLR 525 (CA). Although an appellate court stands as a guardian against serious injustices occasioned by oversight or incompetent representation, its stewardship is exercised within a legal system which depends upon trained advocates who are not admitted to practise law unless and until their basic qualifications and training are verified.
(Emphasis added)
Cripps JA dissented in respect of the outcome in Chouman on the basis that, on the evidence before the court, there was no miscarriage of justice. He emphasised finality and noted that litigants who present cases properly would be disadvantaged (at 156):
[A] miscarriage of justice is not established upon proof that a party's legal representative has inadvertently failed to cross-examine about a particular matter or elects to conduct a case in a way which, with hindsight, may have been unwise. If conduct of the type assumed in the present case can be used to establish that a miscarriage of justice occurred entitling an appellate court to intervene, there will be no finality to litigation. If such inadvertence or incompetence is a ground for a new trial, there is no reason why, in principle, the Court of Appeal cannot intervene and order a new trial if inadvertence or tactical miscalculation occurs in the subsequent trial. The development of such a principle will encourage incompetent advocacy at and preparation for trial. Litigants who prepare cases properly and present them competently will be disadvantaged by being denied an avenue of appeal available to their incompetent opponents.
(Emphasis added)
In TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Hayne J emphasised that the appellate enquiry as to whether a failure to call evidence by trial counsel amounts to a miscarriage of justice is an objective one, encompassing the question: could there be any reasonable explanation for not calling the evidence? (at [107]):
… [W]hen it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?
(Emphasis added)
In Nudd v The Queen [2006] HCA 9; 80 ALJR 614, the High Court was concerned with a contention that incompetency of trial counsel had caused a miscarriage of justice. The Court dismissed the appeal. At [24] Gummow and Hayne JJ said:
Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
(Emphasis added; citations omitted)
Additionally, in Nudd Gleeson CJ affirmed that where possible an appellate review of the conduct of trial counsel should be an objective inquiry (at [10]):
…To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel.
(Emphasis added)
In Stevens v McCallum [2006] ACTCA 13 the Court of Appeal conducted a lengthy review of the relevant case law on this topic, referring to a number of the cases outlined above.
In the civil context Jowett v Kelly [2008] NSWSC 1009 involved a particularly egregious level of incompetence. The case concerned a stay application pending an appeal brought on the basis of alleged incompetence of the appellant’s former representative. The evidence before the Court had established that the defendants in that case had not been kept apprised as to the conduct of their case by their solicitor, and were unaware that orders had been made against them: Jowett at [2]. Other solicitors from the firm at which the impugned solicitor had been employed gave evidence by affidavit which had corroborated that the solicitor’s conduct in that matter had been “woeful”: Jowett at [5].
In allowing the application, Brereton J referred to Chouman and Birks, noting that the incompetence of legal representation had been recognised as an arguable ground of appeal in those cases. Brereton J noted that the observations of Kirby P in Chouman suggested that a “more robust” application of the principle may be expected in the context of civil litigation: Jowett at [11]. This position with respect to civil litigation is predicated upon the general principle of finality: “controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34]-[35]. Thus, the test, developed in the context of criminal proceedings, is arguably even more robust in civil cases.
This indication of an even more robust approach in civil cases was reinforced in Bajramovic v Calubaquib [2015] NSWCA 139 where Emmett JA (with whom Leeming JA and Adamson J agreed) emphasised the need to exercise the jurisdiction sparingly in the case of civil proceedings (at [38]):
It is axiomatic that a party is normally bound by the way in which his or her counsel conducts a trial on behalf of the party. That is necessary for the efficient administration of justice, and an adversary system of trial could not work effectively with a different rule. In a criminal trial, inadvertence on the part of an advocate, or clear incompetence, can, in some circumstances, require the intervention of the court in order to avoid the risk of a miscarriage of justice. However, even in the conduct of a criminal trial, where liberty and reputation are at stake, such jurisdiction must be exercised cautiously, and the mere fact of a mistake or unwise decision made by an advocate will not, without considerably more, justify the setting aside of a conviction to avoid a miscarriage of justice. A fortiori, the jurisdiction must be exercised very sparingly in civil proceedings.
(Emphasis added)
Recently, Tully v The Queen [2016] ACTCA 4 referred to Nudd and Ahmu v The Queen [2014] NSWCCA 312 where Basten JA observed (at [30]-[31]):
…Because, as a matter of basic principle, an accused is bound by the course taken by counsel in conducting a trial, cases in which a conviction will be set aside on the basis of apparent incompetence of counsel will be few and far between.
…
As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [10], "[t]o the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process." That is to say, whether counsel has acted according to or in contravention of the advocates' ethical rules, and why, is not in issue, unless it explains some objective feature in a way which establishes or discounts a miscarriage...
Most recently in Xu v R [2019] NSWCCA 178 the relevant authorities were reviewed (at [31]-[33]) in the context of the failure to call good character evidence.
Conclusion
It is clear that incompetence of counsel is not a ground of appeal in and of itself. The ground of appeal is whether such incompetence amounts to a miscarriage of justice. In this case it does not for the following reasons.
The evidence of incompetence relied upon does not demonstrate “flagrant incompetence” of counsel. It is clear from the authorities that the mere fact that a mistake or unwise decision in the conduct of a criminal trial was made by an advocate, will not of itself justify the setting aside of a criminal conviction to avoid a miscarriage of justice. This is the case in criminal trials where the liberty of the subject is at stake. It is also clearly the case in civil trials: see Chouman at 149. A mistake or unwise decision is not enough to establish a miscarriage of justice.
As a general rule an accused person is bound by the way the trial is conducted by counsel. Again, as a general rule this can include lack of instructions, errors of judgment, or even negligence: Birks at 685. There have been statements in the relevant authorities that an even more “robust” approach should be applied in the civil context: see Bajramovic at [38].
The examples provided by the appellant in the context of the entire hearing may be argued to rise to a level of incompetence whether separately or compendiously. Taken together the evidence however does not rise to “flagrant incompetence” in accordance with the principles set out in the relevant authorities. A miscarriage of justice has not been established.
Finally, I should add for sake of completeness that in considering whether a miscarriage of justice has been established the report relied upon by the appellant, the Maloney Report, does not compel the Court to the conclusion that there has been a miscarriage of justice.
The appeal should be dismissed.
Costs
The appellant accepted that it was inevitable given the nature of this appeal that the appellant should bear the reasonable costs of and incidental to this appeal on the usual basis, given that any fault has not been occasioned by the respondent, but rather by the alleged inadequacies in the appellant’s prior legal representation (AWS [16]; T.48.40-47). The respondent agreed with the appellant’s contention that the appellant must pay the costs of the appeal and any remitter, and requested to be heard as to the conditions on which any costs order is made if the appeal were to be upheld and the matter remitted (RWS [35]; T 81.9-12). There being no remitter this question is now irrelevant.
Orders
The orders of the Court are:
(a) The appeal is dismissed.
(b) The appellant is to pay the respondent’s costs of the appeal.
(c) Any party seeking a different order on costs must notify my associate by email (copied to the other party) by 4pm on 18 August 2020.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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