SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0158
| GLENYCE RUTH GREEN | Appellant |
| v | |
| EMERGENCY SERVICES TELECOMMUNICATION AUTHORITY | Respondent |
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| JUDGES | ASHLEY, PRIEST and SANTAMARIA JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 July 2014 |
| DATE OF JUDGMENT | 10 September 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 207 |
| JUDGMENT APPEALED FROM | Green v Emergency Services Telecommunication Authority (Unreported, County Court of Victoria, Judge Lacava) |
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ACCIDENT COMPENSATION – Workplace injury – Negligence and breach of statutory duty – Jury trial – Verdict for defendant – Recent invention – Legal practitioners – Counsel’s duties – Attack on plaintiff – Unjustified allegation of concoction and collusion between plaintiff and solicitor – Duty of counsel to ensure that evidence exists justifying allegation – Appeal allowed – New trial ordered.
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Wyles QC with Mr C S Smale | Saines Lucas Solicitors |
| For the Respondent | Mr M F Wheelahan QC with Mr S E Gladman | Thomson Geer |
ASHLEY JA
PRIEST JA
SANTAMARIA JA:
Introduction
Glenyce Ruth Green, the plaintiff in proceedings in the County Court, appeals against judgment for the defendant entered on 11 October 2013.
By writ issued on 10 September 2012, the appellant sued her employer, the Emergency Services Telecommunication Authority (‘ESTA’), claiming that in the course of her employment as a call-taker and fire-dispatcher she had sustained personal injuries as a result of her employer’s negligence or breach of statutory duty.
At trial, the appellant’s case centred upon an allegation that she suffered injury to her hands, wrists, arms and shoulders as the result of an excessive work-load undertaken by her on Black Saturday— 7 February 2009[1] — in unsatisfactory working conditions. That was the burden of the opening by her senior counsel,[2] and of her evidence in chief. Senior counsel opened to the jury that, ‘we’ll be asking you to find that it was the work on that day [Black Saturday] that caused [the injuries] to all start up’.
[1]The appellant also relied, more broadly, on work undertaken by her during the 2008–2009 fire season.
[2]He was not counsel who appeared for the appellant in this Court.
After a trial lasting nine days, on 11 October 2013 a jury of six returned a verdict for the defendant, finding that there was no negligence or a breach of a statutory duty which was the cause of injury, loss or damage to the appellant. Judgment was thus entered for ESTA, and the appellant was ordered to pay costs.
By Notice of Appeal dated 25 October 2013, the appellant seeks to set aside the jury’s verdict and consequential orders, and seeks an order for a retrial.
For the reasons that follow, we would allow the appeal.
Grounds of appeal
There are 11 grounds of appeal, grouped under three headings — ‘Conduct of counsel’ (grounds 1 to 3), ‘Conduct of the trial judge’ (grounds 4 to 8) and ‘The Workload Document’ (grounds 9 to 11).
The fate of this appeal, as will be seen, lies…
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- Case
- [2014] VSCA 207
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the defendant's counsel had breached their duties by making an allegation of concoction and collusion without sufficient evidence to support the claim. The court had to consider whether such an allegation was justified and whether it had unfairly prejudiced the plaintiff's case, potentially warranting a new trial. Additionally, the court had to examine the extent to which the allegation may have influenced the jury's decision.
The court found that the allegation of concoction and collusion was not supported by any evidence and was therefore unjustified. The court held that the defendant's counsel had breached their duties by making such an allegation without ensuring that there was evidence to justify it. This breach had the potential to unfairly prejudice the plaintiff's case, and as such, the court allowed the appeal and ordered a new trial. The court emphasised the importance of counsel ensuring that any allegations made are supported by evidence and that they do not unfairly prejudice the opposing party's case.
In light of the findings, the court made orders for a new trial to be held, with the aim of ensuring that the plaintiff's case was not prejudiced by any unjustified allegations. The court highlighted the importance of legal practitioners adhering to their duties and ensuring that any allegations made are supported by evidence. The court also noted the potential consequences of failing to do so, including the possibility of a new trial being ordered.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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