Huntington v Kew Golf Club
[2017] VSC 612
•4 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2014 04993
| IAN HUNTINGTON | Plaintiff |
| v | |
| KEW GOLF CLUB | First Defendant |
| ANDELAJE PTY LTD | Second Defendant |
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JUDGE: | Zammit J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 October 2017 |
DATE OF RULING: | 4 October 2017 |
DATE OF WRITTEN REASONS: | 11 October 2017 |
CASE MAY BE CITED AS: | Huntington v Kew Golf Club & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 612 |
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LEGAL PRACTITIONERS – Barrister – Application to restrain barristers from acting – Application brought under inherent jurisdiction – Whether real possibility that barristers will be required to give evidence at trial – Application dismissed – Grimwade v Meagher [1995] 1 VR 446; Reardon v Digney [2017] VSC 574; Legal Profession Uniform Conduct (Barristers) Rules 2015 r 101(d).
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APPEARANCES: | Counsel | Solicitors |
| For Mr T Tobin SC | Mr M Fleming QC | Slater and Gordon |
| For Mr G Clark | Mr T Monti QC with Mr M Seelig | Slater and Gordon |
| For the First Defendant | Ms G Cooper | Wotton and Kearney |
| For the Second Defendant | Mr D Wallis | Meridian Lawyers |
HER HONOUR:
Introduction
By summons dated 2 October 2017, the first defendant seeks an order that Mr Timothy Tobin SC and Mr Gary Clark be restrained from appearing for the plaintiff in the trial of this matter on 9 October 2017.
The application was made on the basis that there is a real possibility that Mr Tobin and Mr Clark may become witnesses in the case.
I have dismissed the application and now provide my written reasons.
In very short compass, the plaintiff has issued common law proceedings against the Kew Golf Club (‘the Club’) and Andelaje Pty Ltd in respect of injuries he suffered as a result of an accident that occurred on 12 August 2013.
The plaintiff alleges that he suffered spinal injuries when he was crushed by a falling tree during a round of golf at the Kew Golf Course on 12 August 2013.
The first defendant relied on the affidavits of Ms Dian Lenore Turner dated 27 September 2017 and Mr Mathew Loughnane dated 3 October 2017.
The second defendant relied on the affidavit of Mr James Hand dated 3 October 2017.
Mr Tobin and Mr Clark relied on their individual affidavits dated 4 October 2017.
The evidence
On 20 September 2016 a view was organised of the Club. A number of people attended the view including: Mr Tobin and Mr Clark; Mr Ted Stirling, who was retained by the plaintiff’s solicitors to provide an opinion in respect of the circumstances of the plaintiff’s accident; Ms Lily Boskovski, the plaintiff’s solicitor; the defendant’s legal representative; and Mr Mathew Loughnane, the first defendant’s general manager.
The uncontested evidence of Mr Tobin and Mr Clark is that they met with Mr Stirling in the carpark prior to the view and that they attended the Club house and had a cup of tea or coffee.
Mr Tobin’s evidence is that, by the time of the view, he had read all the discovered documents in the proceeding and the numerous witness statements that had been obtained and had conferred extensively with the plaintiff and his son and therefore had an ‘intimate knowledge of the matters in issue’.[1]
[1]Affidavit of Timothy Patrick Tobin sworn 4 October 2017 at [12].
Mr Tobin’s evidence was that the discussions with Mr Stirling in the Club house were in part to satisfy himself as to Mr Stirling’s expertise in matters relating to golf clubs and to advise him of the materials that were available for his assistance and which he believes were provided to Mr Stirling. Mr Tobin provided no material to Mr Stirling in the course of their meeting at the view, nor was he aware of any material existing that was confidential material other than discovered documents and statements obtained by the plaintiff’s instructing solicitors in preparation for this case. To the extent that Mr Stirling was provided information in confidence it was by way of necessary materials that had been obtained in the preparation of this case. The discussions with Mr Stirling in relation to the case were relatively limited with Mr Tobin and Mr Stirling largely discussing golf before the view commenced.
Mr Tobin considers that there would be significant prejudice to the preparation and presentation of the plaintiff’s case if he or Mr Clark were not to act on the plaintiff’s behalf.
Mr Clark deposes that, after arriving at the Club, he remained in the carpark awaiting the attendance of the rest of the viewing party (Mr Tobin, Ms Boskovski, Mr Stirling and the defendant’s legal representative). After Mr Tobin and Mr Stirling arrived, they three went to the Club house and waited for the others to arrive. While they waited, they had a cup of tea or coffee. Mr Clark does not recall in any detail any discussion had at this time. His evidence is that the discussions were not substantive in nature and as such he did not feel it necessary to make file notes. To the best of his recollection they discussed the general background of the incident and Mr Tobin and Mr Stirling had general discussions about golf, both being keen golfers.[2]
[2]Affidavit of Gary Robert Clark sworn 4 October 2017 at [7].
Mr Clark also deposes that if new counsel had to be briefed in this matter, it would be extremely difficult to be properly prepared, given the trial date of 9 October 2017. The plaintiff is 85 years of age and remains a paraplegic as a result of the incident. Mr Clark considers that, given the extent of contact between himself and the plaintiff over a four year period, it would be extremely distressing for the plaintiff if he was no longer able to act for him. He submits that the plaintiff would also suffer massive prejudice if he was restrained from acting for him.
The defendants rely upon two emails in support of their application. The first email, dated 28 September 2016, is from Mr Stirling to Ms Jenny Bilir, an employee of the plaintiff’s solicitors.[3] In his email, Mr Stirling states:
If I want information from Gary Clark do I contact him direct and I do have his mobile or do I go through you? Gary had in his folder at the meeting quite precise colour photographs of the accident site and the tree on the ground. I was curious as whether I could obtain a copy of those, he also had some other documents that we discussed and he said he would send them to me. I am not too sure if Gary has my email, you could either pass it on and refer back to me to whom I speak with you or Gary.
…
The other questions [sic] is – what is Timothy Tobin’s part in all of this, he certainly had some quite intimate knowledge as he is also a member at Kew Golf Club. Both chaps were quite forthcoming with the information they possess re the accident…
[3]Exhibit DLT-1, affidavit of Dian Lenore Turner affirmed 27 September 2017.
The plaintiff’s solicitor, Ms Lily Boskovski, responded on 3 October 2017:
Tim Tobin is the QC involved in the case, if the matter runs to trial he will lead Gary Clark as the Counsel representing the client. Being a member of the golf course he does have a lot of information regarding the aftermath of the accident. Ian [the plaintiff] was a big contributor to that golf club with a lot of people knowing who he was.[4]
[4]Exhibit DLT-2, affidavit of Dian Lenore Turner affirmed 27 September 2017.
Mr James Hand, solicitor acting for the second defendant, deposed that the email correspondence between Mr Stirling dated 28 September 2016 and the reply from Ms Boskovski dated 3 October 2016 raised concerns as to whether Mr Tobin had provided information to Mr Stirling which Mr Stirling had relied upon in forming his opinion. Following requests to the plaintiff’s solicitors, Mr Hand was informed that there were no notes of conference made by Mr Tobin, Mr Clark or Ms Boskovski in relation to the meeting with Mr Stirling at the view on 20 September 2016.
Defendants’ submissions
The defendants submit that, pursuant to r 101(d) of the Legal Profession Uniform Conduct (Barristers) Rules 2015, a barrister must refuse to accept or retain a brief or instructions to appear before a court if ‘the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case.’
The defendants submit that, based on the email correspondence from Mr Stirling and Ms Boskovski and the fact that no contemporaneous notes were taken of what was said at the view, it is inevitable that Mr Stirling will be cross-examined about the basis of forming his opinion and the content of discussions he had with Mr Tobin and Mr Clark on the day of the view or otherwise. They further submit that, even if Mr Stirling, Mr Tobin and Mr Clark have the best of intentions to be fully transparent about any information passing between them, there remains a real possibility that there will be a dispute over what was said, and by who, given the lack of contemporaneous notes.
The defendants submit that, as a consequence, there is a real possibility that Mr Tobin or Mr Clark may be called to give evidence about the contents of such discussions. This would mean that the plaintiff’s legal counsel can no longer act for him. They submit that such a sequence of events would result in a waste of this Court’s time, resources and costs.
Submissions on behalf of Mr Tobin and Mr Clark
Counsel for Mr Tobin and Mr Clark submitted that the likelihood of their clients being required to give evidence as to the instructions given to the prospective expert witness, Mr Stirling, is negligible. They submitted that Mr Tobin and Mr Clark were quite forthcoming with the information they possessed in relation to the accident and what was discussed with Mr Stirling.
At the time of the view, Mr Tobin and Mr Clark had been acting in the proceeding for years and, as such, had obtained intimate knowledge of the proceeding by reading discovered documents, witness statements and had conferred extensively with the plaintiff and his son. It was submitted that there was no reason for inferring that the ‘intimate knowledge’ referred to Mr Stirling relates to anything else.
They further submitted that Mr Tobin and Mr Clark, by their affidavits, explained what transpired at the view, refuting any suggestion that their conference with Mr Stirling could give rise to any real possibility that Mr Tobin or Mr Clark might be required to give evidence as to what was said to Mr Stirling on that occasion.
Relevant law
The legal principles to be applied by the Court in considering whether to restrain a legal practitioner from acting are well settled and were very recently set out by Almond J in Reardon v Digney[5] as follows:
[5][2017] VSC 574.
(a) the court has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice;
(b) the test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice;
(c) the jurisdiction is to be regarded as exceptional and is to be exercised with caution.
(d) due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause;
(e) the timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act is a reason for refusing to grant relief.[6]
[6]Ibid [15] citing Kallinicos v Hunt (2005) 64 NSWLR 561, 582–3 [76] (Brereton J) (‘Kallinicos’).
These principles apply equally to barristers and solicitors.
Analysis
I do not accept the defendants’ submissions that the email exchange between Mr Stirling and the plaintiff’s solicitor indicates that there has been a significant amount of relevant discourse between Mr Clark, Mr Tobin and Mr Stirling which should be disclosed. The fact that Mr Stirling has not made reference to any discussion between himself and Mr Tobin and Mr Clark, or that there are no contemporaneous notes taken of what was said before the view, does not lead me to infer that relevant information was provided that has not been referred to the defendants’ solicitors forming the basis of Mr Stirling’s report.
The evidence before the Court is that, in the time Mr Clark, Mr Tobin and Mr Stirling met before commencing the actual view, a significant period of time was spent in which Mr Tobin and Mr Stirling discussed golf generally.
Mr Stirling’s report will no doubt be the subject of a challenge and it is likely he will be extensively cross-examined as to its contents as well as the assumptions, documents and information that informed its preparation.
In his report dated 31 October 2016[7] Mr Stirling confirms that he has read the Supreme Court (General Civil Procedure) Rules 2005 – expert witness code of conduct form 44A – r 44.01 and agrees to be bound by the Code. Further, Mr Stirling sets out in his report the assumed facts he has relied upon, the list of documents received and the list of documents received at a later date after the site visit and the specific questions he was asked to address.
[7]Exhibit GRC1, affidavit of Gary Robert Clark sworn 4 October 2017.
There is nothing untoward or unusual in the circumstances of the preparation of this report, or Mr Clark and Mr Tobin’s meeting with Mr Stirling prior to the view and the discussions deposed to by Mr Clark and Mr Tobin with Mr Stirling in the period prior to the actual view.
I do not consider that there is a real possibility that Mr Clark or Mr Tobin will be required to give evidence on the basis submitted by the defendants.
Furthermore, as noted above, the Court’s jurisdiction called upon in the present application is to be regarded as exceptional and is to be exercised with caution.[8]
[8]Grimwade v Meagher [1995] 1 VR 446; Kallinicos (2005) 64 NSWLR 561, 582–3 [76].
The plaintiff is 85 years old. Mr Clark and Mr Tobin have been involved in this case for a significant period of time. I do not consider it would be in the public interest for the plaintiff to be deprived of his barristers of choice without due cause.
The timing of the application is also a relevant consideration.[9] The application is brought on the eve of the trial and there are obvious implications for cost, inconvenience and delay.
[9]Kallinicos (2005) 64 NSWLR 561, 582–3 [76].
In summary, I do not consider that there is any real possibility that Mr Clark or Mr Tobin will be required to give evidence about what was said to Mr Stirling prior to the view. I accept Mr Clark and Mr Tobin’s explanations. This, along with the matters referred to in the preceding paragraphs individually and collectively, argues against the grant of the order.
For the above reasons, the application is dismissed with costs.
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