SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kaye v Woods (No 2) |
Citation: | [2016] ACTSC 87 |
Hearing Date(s): | 22 and 29 April 2016 |
DecisionDate: | 4 May 2016 |
Before: | Mossop AsJ |
Decision: | See [150]-[151] |
Catchwords: | EVIDENCE – Client legal privilege – Loss of privilege under Evidence Act 2011 (ACT) s 125 by act that renders a person liable to a civil penalty – Act may be that of solicitor rather than client – Meaning of “in furtherance of the commission of a fraud … offence … or act” – Document must be connected to the fraud, offence or act in the sense of advancing or assisting it – Burden of proof lies with party challenging the claim of privilege PROFESSIONAL CONDUCT – LAWYERS – Where first defendant’s solicitors failed to serve a supplementary medical report until day before trial – whether statements made to and correspondence with other parties in relation to report was misleading – solicitors subject to a duty not to make misleading statements to other parties – whether affidavit of defendant’s solicitor providing an explanation for the delay in service was misleading – duty of honesty owed by solicitors extends to avoiding misleading the Court – extends to conduct which is liable to mislead even where no false statement is made – duty breached even if Court is mislead temporarily – instructing solicitor failed to correct representations made by counsel which were likely to mislead the Court – solicitors subject to a duty to correct misleading statements |
Legislation Cited: | Evidence Act 2011 (ACT), ss 118, 119, 125, 131A Legal Profession Act 2006 (ACT), s 425 |
Cases Cited: | Amcor Limited v Barnes [2011] VSC 341 AWB Ltd v Cole (No 5) (2006) 155 FCR 30 Re Thom (1918) 18 SR (NSW) 70 |
Texts Cited: | Bobette Wolski, “The truth about honesty and candour in mediation: What the Tribunal left unsaid in Mullins’ case” (2012) 36(2) Melbourne University Law Review 706 G E Dal Pont, Lawyers Professional Responsibility (Thomson Reuters, 5th ed, 2013) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 11th ed, 2014) |
Parties: | Elise Sarah Kaye (Plaintiff) |
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- AGLC
- Kaye v Woods (No 2) [2016] ACTSC 87
- Case
- [2016] ACTSC 87
- Decision Date
CaseChat Overview and Summary
The legal issues central to the decision involved the interpretation of client legal privilege under the Evidence Act 2011 (ACT) and the extent to which misleading conduct by solicitors could constitute a breach of professional duties. Specifically, the court examined whether the act that rendered the privilege lost was attributable to the solicitor rather than the client, and if so, what this meant in the context of the phrase "in furtherance of the commission of a fraud … offence … or act". Additionally, the court assessed whether the solicitors' failure to correct misleading representations made by counsel amounted to a breach of their duty of honesty and whether this conduct extended to misleading the court even in the absence of false statements.
The court determined that the loss of privilege under s 125 of the Evidence Act 2011 (ACT) could indeed be attributed to the act of the solicitor, not just the client, if the document in question was connected to the fraud, offence, or act in the sense of advancing or assisting it. The burden of proof was held to lie with the party challenging the claim of privilege. Regarding the misleading conduct, the court found that the duty of honesty owed by solicitors includes avoiding conduct that is liable to mislead, even in the absence of false statements, and extends to the court. The failure to correct misleading statements made by counsel was found to breach this duty, even if the court was only misled temporarily.
The court ordered that the first defendant’s solicitors be subject to certain disciplinary actions for their misleading conduct and the failure to correct the misleading statements. Specific orders were made regarding the disciplinary proceedings against the solicitors, which were detailed in paragraphs 150 and 151 of the judgment.
Orders
Orders of the court
See [150]-[151]
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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