Mathews v Director of Legal Aid

[2004] WASC 225

MATHEWS -v- DIRECTOR OF LEGAL AID [2004] WASC 225

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 225
Case No:	CIV:2094/2002	Heard:	18, 19, 20 & 21 OCTOBER 2004
Coram:	COMMISSIONER ZILKO SC	Delivered:	3/11/04
No of pages:	23	Judgment Part:	1 of 1
Result:	Plaintiff's claim dismissed
Category:	B
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Parties:	DOUGLAS EDWARD MATHEWS DIRECTOR OF LEGAL AID
Catchwords:	Legal practitioners Alleged negligence in performance of out of court and in court tasks Vicarious liability of defendant for conduct of practitioner employed by Legal Aid Commission Causation Immunity from suit
Legislation:	Legal Aid Commission Act 1976
Case References:	Bell v State of WA [2004] WASCA 205 BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294 Giannarelli & Anor v Wraith (1988) 165 CLR 543 Heydon v NRMA Ltd (2000) 51 NSWLR 1 Keefe v Marks (1989) 16 NSWLR 713 Mathews v R (2001) 24 WAR 438 Rees v Sinclair [1974] 1 NZLR 180 Rondel v Worsley [1969] 1 AC 191 Saif Ali v Sydney Mitchell & Co [1980] AC 198 Swinfen v Lord Chelmsford (1860) 157 ER 1436 Abriel v Rothman [2002] NSWSC 1056 Arthur J S Hall & Co (a Firm) v Simons [2002] 1 AC 615 Attorney General for New South Wales v Spautz [2001] NSWSC 66 Boland v Yates Property Corp Pty Ltd (1999) 167 ALR 575 Chappel v Hart (1998) 195 CLR 232 D'Orta-Ekenaike v Victoria Legal Aid, unreported; C of A Vic; Library No 3779 of 2002; 14 March 2003 Del Borrello v Friedman & Lurie [1999] WASC 17 Feldman v A Practitioner [1977] 18 SASR 238 Hawkins v Clayton (1988) 164 CLR 539 MacRae v Stevens (1996) Aust Torts Rep 81-405 May v Mijatovic (2002) 26 WAR 95 Protean (Holdings) Ltd v American Home Insurance [1985] VR 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MATHEWS -v- DIRECTOR OF LEGAL AID [2004] WASC 225 CORAM : COMMISSIONER ZILKO SC HEARD : 18, 19, 20 & 21 OCTOBER 2004 DELIVERED : 3 NOVEMBER 2004 FILE NO/S : CIV 2094 of 2002 BETWEEN : DOUGLAS EDWARD MATHEWS

Plaintiff

AND

DIRECTOR OF LEGAL AID
Defendant

Catchwords:

Legal practitioners - Alleged negligence in performance of out of court and in court tasks - Vicarious liability of defendant for conduct of practitioner employed by Legal Aid Commission - Causation - Immunity from suit

Legislation:

Legal Aid Commission Act 1976

Result:

Plaintiff's claim dismissed

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Category: B

Representation:

Counsel:

Plaintiff : In person
Defendant : Mr S D Hall SC

Solicitors:

Plaintiff : In person
Defendant : Phillips Fox

Case(s) referred to in judgment(s):

Bell v State of WA [2004] WASCA 205
BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294
Giannarelli & Anor v Wraith (1988) 165 CLR 543
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Keefe v Marks (1989) 16 NSWLR 713
Mathews v R (2001) 24 WAR 438
Rees v Sinclair [1974] 1 NZLR 180
Rondel v Worsley [1969] 1 AC 191
Saif Ali v Sydney Mitchell & Co [1980] AC 198
Swinfen v Lord Chelmsford (1860) 157 ER 1436

Case(s) also cited:

Abriel v Rothman [2002] NSWSC 1056
Arthur J S Hall & Co (a Firm) v Simons [2002] 1 AC 615
Attorney General for New South Wales v Spautz [2001] NSWSC 66
Boland v Yates Property Corp Pty Ltd (1999) 167 ALR 575
Chappel v Hart (1998) 195 CLR 232
D'Orta-Ekenaike v Victoria Legal Aid, unreported; C of A Vic; Library No 3779 of 2002; 14 March 2003
Del Borrello v Friedman & Lurie [1999] WASC 17
Feldman v A Practitioner [1977] 18 SASR 238


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Hawkins v Clayton (1988) 164 CLR 539
MacRae v Stevens (1996) Aust Torts Rep 81-405
May v Mijatovic (2002) 26 WAR 95
Protean (Holdings) Ltd v American Home Insurance [1985] VR 187


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1 COMMISSIONER ZILKO SC: In this action the plaintiff claims that the defendant was negligent in the course of preparing for and representing the plaintiff at a criminal trial in the District Court of Western Australia on 23 and 24 November 2000. The negligence is said to arise from the conduct of Ronald Smith, a legal practitioner allegedly employed by the defendant.

2 At the conclusion of the plaintiff's case the defendant submitted that there was no case for him to answer. Upon being informed of the proposed submission, I advised counsel for the defendant that I was not minded to entertain the submission unless he elected to call no evidence (as to which see BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294 at [7]). Counsel thereupon advised me that the defendant elected to call no evidence. This meant that the submissions made to me by the parties were, in effect, their closing submissions.

Background

3 On 23 July 1986 Dart Base Metal Exploration ("Dart Base") was registered as a business name. It was the plaintiff's evidence that at the time of its registration he was prospecting in the Pilbara and he telephoned his then wife to register the name. When he returned to Perth he amended the registration details so as to show that he and his wife were partners in that business. At all material times the partnership operated a cheque account with the Bank of Western Australia ("BankWest").

4 In the early 1990's the plaintiff's marriage began to break down and eventually the Dart Base partnership was dissolved on 1 July 1998. The plaintiff says that the appropriate changes were made to the business registration details at the Ministry of Fair Trading and that the Manager of the BankWest branch at Maddington was informed of the changes. Following the dissolution of the partnership (which by then included not only the plaintiff and his wife but also their two adult children and the plaintiff's son-in-law) the plaintiff operated Dart Base as its sole proprietor.

5 There was another business called Mathews Drilling Services ("MDS") of which the plaintiff was also the sole proprietor. That business operated a cheque account with the National Australia Bank. The plaintiff was at pains to establish in his evidence that he did not have an overdraft facility for the MDS account. Moreover, he believed that each time a cheque was deposited in that account, the National Australia Bank would undertake a "special answer" clearance on the cheque such that the

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plaintiff could draw on the deposited funds more quickly than normal banking practices would allow. Accordingly, in the plaintiff's mind the arrangements with the National Australia Bank were that he had no overdraft facility and the bank was operating a continuous special answer clearance facility on each and every cheque deposited in the MDS account, in consequence of which the plaintiff could only cash a cheque drawn on the account if there was sufficient money in the account to meet that cheque. In support of his belief about these matters the plaintiff tendered a copy of a letter dated 27 July 1994 which he says was delivered to the Gosnells branch of the National Australia Bank on or about that date. The letter referred to the plaintiff's request for special clearance on cheques deposited in the account and that the account not be permitted to go into overdraft.

6 On 20 November 1998 the plaintiff entered into an agreement with Charles Leslie Stapleton whereby Mr Stapleton agreed to pay the plaintiff $300,000 for the purchase of various drilling consumerables, gold nuggets and intellectual property in relation to the design of a drilling bit and hammer. It was a term of the agreement that payment of the consideration would be made by Stapleton into the Dart Base account at BankWest on or before 10 December 1998.

7 In the belief that Stapleton had paid the above sum into the Dart Base account, between 29 and 31 December 1998 the plaintiff drew four cheques on the account for $4,000, $5,000, $30,000 and $100,000 in favour of MDS. In the same two day period he paid those cheques into the MDS account with the National Australia Bank. Thereafter he drew several cheques on that account. There were nine cheques in all which the plaintiff cashed at five different branches of the National Australia Bank in the Perth metropolitan area. He said that the funds so obtained were used for gambling purposes. The difficulty was that there was insufficient money in the Dart Base account to meet the four cheques drawn on it so that when the plaintiff cashed the various cheques drawn on the MDS account, there were no funds in that account to meet the withdrawals. However, without realising that the cheques drawn on the Dart Base account would be dishonoured, the National Australia Bank allowed the plaintiff to cash the various cheques drawn by him on the MDS account. The plaintiff assumed that as there was a standing arrangement with the National Australia Bank for a special clearance to be applied to each cheque deposited in the MDS account, the bank had undertaken the special clearance procedure on the Dart Base cheques and had satisfied itself that there were sufficient funds to meet the cheques subsequently cashed by the plaintiff. If he had known there were no funds to support

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the cheques cashed by him, he said he would never have drawn those cheques. As I indicated earlier in these reasons, the money was used for gambling and it seems to be common ground that all or nearly all of it was lost by the plaintiff.

8 On the plaintiff's case the difficulty in relation to the lack of funds in the Dart Base account at BankWest arose from the fact that Mr Stapleton never paid the agreed sum of $300,000 into that account. The plaintiff admitted that he had not contacted BankWest to ascertain for himself whether Stapleton had made the required payment by 10 December 1998 or at all, instead assuming that Stapleton would have done so. He said that he and Stapleton had known each other for some years and that he trusted Stapleton to make the payment without confirming for himself that this had in fact been done. He referred to large payments previously made by Stapleton to him in support of his belief as to the likelihood of payment. It seems that Stapleton has now disappeared. The plaintiff's evidence was that he wrote to him in January 1999 in the Philippines, where he thought he was working, demanding payment of the agreed sum of $300,000 but he has not received a reply to that letter nor has he received any of the agreed amount. He has had no contact with Stapleton since November 1998 when the agreement was made.

9 The cheques cashed by the plaintiff caused the MDS account to be overdrawn in the sum of $83,691. The National Australia Bank asked the plaintiff to repay this sum but he was unable to do so because the money had been gambled away. The National Australia Bank then reported the matter to the police. In due course the police interviewed the plaintiff on 28 May 1999. A video recording was made of the interview and a transcript of the interview was prepared by the police officers involved in the investigation. Shortly after the conclusion of the interview the plaintiff was charged with four counts of fraud under s 409 of the Criminal Code. Those counts referred to the sums of $4,000, $5,000, $30,000 and $100,000 already mentioned by me.

10 As a result of being charged the plaintiff sought and obtained legal assistance from the Legal Aid Commission of Western Australia. To that end he had an interview with Ms Kelly Bajgerytsch, a solicitor at the Legal Aid Commission, on or about 28 June 1999. His evidence was that he and Ms Bajgerytsch watched the video of his interview by the police officers in the previous month. He gave her certain instructions as they watched the video and it was turned on and off to enable notes to be taken by her. As will become clearer when I deal with the evidential matters, the plaintiff first saw Mr Smith on 19 September 2000, a little over two

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months before his trial. It seems the plaintiff probably saw Mr Smith twice more between 19 September and the commencement of the trial and thereafter Mr Smith represented him at the trial in the District Court on 23 and 24 November 2000. At the conclusion of the trial the jury returned verdicts of guilty in respect of each count. On 15 January 2001 the plaintiff was sentenced to 10 months' imprisonment on each count with the terms to be served cumulatively, that is, a total of 40 months. On 19 March 2001 the plaintiff sought leave to appeal against the conviction and his appeal was heard on 2 August 2001. The Court of Criminal Appeal upheld his appeal and quashed the conviction (Mathews v R (2001) 24 WAR 438). The Court of Criminal Appeal directed that there be no re-trial.

The pleadings

11 In his statement of claim the plaintiff alleges that Mr Smith was negligent between 16 June 2000 and 24 November 2000. Particular of Mr Smith's negligence are pleaded in the following terms:

(1) he failed to obtain from the plaintiff a signed proof of evidence or any statement or proof of evidence at all;

(2) he failed to view the video transcript of interview taken by the police from the plaintiff until the first day of the trial;

(3) he failed to view or investigate exculpatory evidence which the plaintiff had produced which proved the banking practices between the plaintiff and the National Australia Bank between 27 July 1994 and May 1999;

(4) he failed to obtain, as instructed by the plaintiff, exculpatory documentary evidence from the National Australia Bank of the banking practices between the plaintiff and the National Australia Bank which showed that the plaintiff regularly drew against uncleared cheques;

(5) he failed to obtain evidence from the plaintiff or from the National Australia Bank concerning the intent of the plaintiff relevant to a defence to the charges pursuant to s 409 of the Criminal Code;

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(6) he failed to make submissions to the Judge and jury at trial concerning the operation of s 409 of the Criminal Code;

(7) he failed to make submissions to the Judge and jury concerning the relevance of the plaintiff's previous good character in a charge involving fraud;

(8) he failed to investigate and obtain independent evidence and witnesses as to the previous good character of the plaintiff and failed to address such evidence or call witnesses at the trial to give such character evidence; and

(9) he called the plaintiff to testify in his own defence at the trial when he, Mr Smith, had failed to prepare the plaintiff's statement of evidence or in any way prepare the plaintiff for the purposes of giving evidence in the witness box.

12 The plaintiff further pleads that as a result of the above negligence he was convicted and sentenced to imprisonment and has thereby suffered loss and damage. The particulars of loss and damage are described as follows:

(1) whilst the plaintiff was in custody for 252 days he suffered isolation, threats, abuse, fear and humiliation;

(2) he has suffered psychological and psychiatric sequelae to the conviction and imprisonment and now suffers from depression and an acute major adjustment disorder;

(3) he is totally and permanently disabled from working and intended to work until aged 65 years;

(4) his previous good character has been ruined and despite the successful appeal he will forever carry the stigma of the conviction;

(5) he has lost earnings of $250,000 until the date on which his statement of claim was filed and continues to lose $10,416 by way of earnings per month.

At the defendant's request the plaintiff provided further and better particulars of his statement of claim. The one relevant matter therein for present purposes is that the plaintiff pleaded he had given the exculpatory

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evidence, referred to in the third particular of negligence, to the defendant on or about 28 June 1999.

13 The defendant joined issue with almost all of the matters pleaded in the statement of claim. The relevant aspects of the defence for present purposes are that:

(1) the defendant denies he was Mr Smith's employer at the relevant times;

(2) Mr Smith did not breach his duty of care in preparing for and representing the plaintiff at his trial in the way pleaded by the plaintiff or at all;

(3) in any event Mr Smith was entitled to immunity from suit in respect of the alleged negligence;

(4) the defendant was also immune from liability under the provisions of the Legal Aid Commission Act for any act or omission by him in good faith and in the exercise of his powers, functions or duties under the Act.

The plaintiff filed a reply in which he joined issue with the defendant in relation to the defendant's immunity from suit and in respect of the other matters pleaded in the defence.

The evidence of the plaintiff and his witnesses

14 The plaintiff gave evidence about his dealings with Mr Smith. Despite pleading that he gave the exculpatory evidence to Mr Smith on or about 28 June 1999, he conceded in cross-examination that he only met Mr Smith for the first time on 19 September 2000. At that meeting he said he offered Mr Smith copies of various banking records which demonstrated how he conducted his account with the National Australia Bank. This was done, he said, in order to show Mr Smith that his behaviour in cashing the various cheques in December 1998 was consistent with an innocent pattern of behaviour that had been ongoing since at least 1991. In particular, he said that he gave Mr Smith three statements from the MDS account to show that a special answer clearance was undertaken by the National Australia Bank on cheques deposited in that account. He also said that he showed Mr Smith a handwritten list of cheques drawn on the Dart Base account and the MDS account, again to demonstrate the way in which he had operated the two accounts over a long period of time. The plaintiff tendered a typed list of these cheque movements which he said was similar to the handwritten list he had

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shown to Mr Smith in September 2000. He also said he asked Mr Smith whether he needed any more documents and whether his accountant should testify at the trial on his behalf. The plaintiff said all of this discussion was directed to Mr Smith seeking production of bank records prior to the trial in order to show that the plaintiff had no overdraft facility and that he had a special answer clearance arrangement in place which ensured that if he sought to cash a cheque on the MDS account with the National Australia Bank, that cheque would only be met if there were funds in the account equal to or greater than the sum of his proposed withdrawal. This would show that when he drew the various cheques in the period 29 - 31 December 1998 he honestly believed that there was sufficient money in the account to meet the value of the cheques so drawn.

15 In many respects the plaintiff's evidence was haphazard in its delivery and lacked the systematic presentation which might have been expected if he had been represented by counsel at the trial. However, the gist of his evidence was that he had expressed his concerns to Mr Smith at the September 2000 meeting about what he described as false statements by certain bank officers regarding his wife's status as a partner of the Dart Base account at BankWest and his own arrangements with the National Australia Bank in relation to the MDS account, in particular that there was no overdraft facility on that account. The plaintiff says that Mr Smith told him he did not need to see the documents which were discussed with him.

16 As to the nature of his discussions with Mr Smith, the plaintiff called Diane Noelle Fisher to give evidence on his behalf. Ms Fisher said she accompanied the plaintiff to the meeting with Ms Bajgerytsch in June 1999 and then again when the plaintiff saw Mr Smith on 19 September 2000. However, her evidence differed in significant respects from the plaintiff's evidence as to what transpired at the meeting. Ms Fisher said the plaintiff asked Mr Smith what documents he wanted. She said that the plaintiff had some documents in a file with him at the meeting and he offered them to Mr Smith but Mr Smith did not want them, so the plaintiff did not take them out of his file nor did he identify any particular documents to Mr Smith. She said that the plaintiff did not say anything else about the documents to Mr Smith. Instead he just took them home. There was no mention by Ms Fisher of the plaintiff's suggestion to Mr Smith that his accountant might testify at the trial.

17 The plaintiff also called Stephen Andrew Shaw who said he was present when the plaintiff delivered the letter dated 27 July 1994, to which I have already referred, to the National Australia Bank. Mr Shaw also

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said that he recalled the contents of the letter although I observe that he was not asked by the plaintiff to recall either the delivery date or the contents of the letter until 2003, some nine years after the event.

18 Needless to say, the nature of the discussions which took place between the plaintiff and Mr Smith at the meeting on 19 September 2000 and in the two months leading up to the trial is critical to the question of whether Mr Smith was negligent in his preparation for and representation of the plaintiff at the trial. However, the evidence of Ms Fisher was hardly corroborative of the plaintiff's version of events at that meeting. Most importantly, if Ms Fisher's recollection is correct, there was never any discussion between the plaintiff and Mr Smith as to the need to investigate the plaintiff's banking arrangements which the plaintiff says Mr Smith failed to undertake and which amounted to negligence on his part. It seems that Ms Fisher attended the other meetings between the plaintiff and Mr Smith prior to the commencement of the trial. She gave no evidence which would suggest that on any other occasion there were discussions between the plaintiff and Mr Smith as to the documents which the plaintiff says Mr Smith should have sought from either BankWest or the National Australia Bank.

19 Insofar as Ms Fisher is concerned, I formed the view that she was doing her best to tell me as accurately as she could what had occurred at the meetings with Mr Smith and, indeed, on all other matters on which she gave evidence. Regrettably, I could not feel the same degree of assurance in relation to the plaintiff's evidence. I formed the impression that the plaintiff's memory was not entirely reliable and that he was, when he considered it necessary, reconstructing events in order to demonstrate Mr Smith's negligence. As to the reconstruction of events, I refer to the above inconsistencies between the plaintiff and Ms Fisher about what Mr Smith was shown and told at the meeting on 19 September 2000. I am satisfied that the plaintiff has convinced himself over time that he not only instructed Mr Smith as to certain investigatory activities but also showed him certain documents in relation thereto when in reality none of this happened.

20 With regard to the reliability of the plaintiff's memory, I have already referred to the fact that in his statement of claim he pleaded that he saw Mr Smith on or about 28 June 1999. In cross-examination he conceded that he was wrong in this respect and that he had in fact seen Mr Smith for the first time some 15 months later in September 2000. In the context of a claim alleging negligence by Mr Smith, this was a significant lapse of memory on the plaintiff's part. Instead of Mr Smith having the conduct of

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the plaintiff's defence for some 17 months leading up to the trial as the plaintiff's statement of claim suggested, the actual period was approximately two months.

21 I was also troubled by another matter which arose during the plaintiff's evidence although I could not categorize it as either a lapse of memory or a reconstruction of events. By November 1998 the plaintiff had incorporated Mathews Drilling Services Pty Ltd and it commenced carrying on business as Drilling and Water Systems. At some stage prior to his trial the plaintiff entered into an agreement with Mathews Drilling Services Pty Ltd whereby he was appointed drilling manager of the company. The agreement was tendered. The date of execution thereon is shown as 23 May 1999 which, as can be seen, was only five days before the police interviewed the plaintiff. In cross-examination, however, the plaintiff conceded that the original agreement had been lost and that its whereabouts are now unknown. What was tendered was an agreement which was created earlier this year and backdated to 23 May 1999. The plaintiff admitted that its contents were taken from the minutes of a meeting which are apparently the only remaining record of what the original agreement said to have been made in May 1999 contained. In cross-examination the plaintiff conceded that when he had provided the agreement to the defendant's solicitors during the discovery process he had not told them that, despite the date on the face of the agreement, it had been created earlier this year or that its contents were taken from the minutes of a meeting in the absence of the original agreement which had been lost. The minutes to which the plaintiff referred were not produced and I am bound to say that the plaintiff's lack of candour in relation to these events was a matter of considerable concern.

22 Having regard to the above matters, where there is a conflict between the evidence of the plaintiff and Ms Fisher, I prefer Ms Fisher's version of events.

23 My findings in relation to the plaintiff's credibility essentially dispose of the third, fourth and fifth particulars of negligence which allege that Mr Smith failed to investigate the so-called exculpatory evidence and to obtain exculpatory documentary evidence from the National Australia Bank. This is because in my opinion there can be no suggestion of negligence on Mr Smith's part when there is no evidence that banking documents were shown to him or that he was instructed to pursue certain lines of enquiry with the banks or to seek the production of any documents from them.

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24 I now turn to the remaining particulars of Mr Smith's alleged negligence. The first of these is that Mr Smith failed to obtain from the plaintiff a signed proof of evidence or any statement or proof of evidence at all. The plaintiff conceded that Mr Smith had advised him that in his opinion the plaintiff ought not give evidence at his trial. However, the plaintiff did not agree with Mr Smith's view of the matter and decided that he would give evidence. Two days before the commencement of the trial he provided Mr Smith with two pages of points which he thought Mr Smith should attempt to bring out whilst the plaintiff was giving his evidence. One page dealt with the plaintiff's dealings with the two banks and the fact that he had no intention of acting in a fraudulent manner because of what he understood were the arrangements between himself and the National Australia Bank. The other page contained personal particulars about his education and background. Mr Smith was sufficiently concerned about the plaintiff's desire to give evidence that he had the plaintiff sign an acknowledgement that he was giving evidence despite Mr Smith's advice that he not do so. This acknowledgement was signed by the plaintiff on the morning of the first day of the trial.

25 There are often very good reasons why in a criminal trial an accused person ought not give evidence. This might be particularly so where there has been an interview between the accused and police officers which is the subject of a video recording and in which the accused has effectively put his defence to the interviewing officers. The plaintiff agreed in his evidence in this trial that he had said all that could be said in his own defence during the interview with the police officers. In the circumstances, the desirability of giving evidence, exposing the plaintiff as it did to cross-examination, was doubtful. Those risks were perhaps illustrated by the plaintiff's concession in this trial that he had made certain comments which he thought may have alienated the jury.

26 In any event, Mr Smith formed the view that the plaintiff ought not give evidence and the plaintiff chose late in the day to ignore that advice and give evidence. It seems to me that this adequately explains why no proof of evidence was prepared. It also deals with the last particular which is to the effect that Mr Smith called the plaintiff to testify in his own defence without preparing a statement of evidence or otherwise preparing the plaintiff to give evidence. In circumstances where an accused person chooses at the last moment to give evidence against the advice of his counsel, I cannot see that counsel should be regarded as negligent for not preparing a proof of evidence at some earlier point in time. Further and in any event, it is clear from the transcript of the plaintiff's evidence in the criminal trial that the essential aspects of his

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defence were explained through Mr Smith's questions and the plaintiff's answers.

27 I turn to the second particular which is that Mr Smith failed to view the video transcript of interview taken by the police in May 1999 until Mr Smith saw it on the first day of the trial. The short answer to this allegation is that no evidence was led by the plaintiff that Mr Smith did not read the transcript of the interview or look at the video prior to the trial. It is clear that in June 1999 when the plaintiff had met Ms Bajgerytsch there had been a viewing of the interview by her and notes were taken. The plaintiff was unable to say anything about what Mr Smith did with the video or with the notes prepared by Ms Bajgerytsch. The plaintiff bears the onus of proof in relation to this and his other allegations but has not discharged it insofar as this particular is concerned.

28 I turn to the sixth particular which is that Mr Smith failed to make submissions to the Judge and jury at trial concerning the operation of s 409 of the Criminal Code. The transcript of the closing submissions of Mr Smith and the prosecutor suggest that Mr Smith did make comments about the plaintiff's honest and reasonable but mistaken belief that there was sufficient money in the account to meet the cheques drawn by the plaintiff. This was, as the Court of Criminal Appeal pointed out, an incorrect approach but Mr Smith was not alone in that regard. The learned trial Judge also adopted the same approach and thereby misdirected the jury as to the proper law. The learned trial Judge directed the jury that they had to be satisfied that the plaintiff's belief as to the state of the account was reasonable and that believing the plaintiff's evidence thereon would not be enough to decide the case. This was despite the fact that the question of intent to defraud is essentially subjective, that is, the answer to that question will depend upon what the plaintiff actually intended rather than what the hypothetical reasonable man would have intended. The Court of Criminal Appeal described the learned trial Judge's comments as a serious misdirection on the relevance of the plaintiff's subjective belief as to the adequacy of the funds in the account. On this basis alone, the plaintiff's appeal was upheld and a judgment and verdict of acquittal were entered in his favour.

29 It is, of course, the role of the Judge in a criminal trial to direct the jury as to the relevant principles of law. Whilst the prosecutor and counsel for the accused might from time to time refer to matters of law in their final addresses to the jury, the trial Judge will almost invariably advise the jury that it is what he or she says regarding the law, rather than

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the comments of the prosecutor or defence counsel, which they must take away with them when considering their verdict. In other words, any submissions Mr Smith made to the jury on matters of law were extraneous and irrelevant to the outcome of the proceedings as was demonstrated by the Court of Criminal Appeal's reference to the learned trial Judge's errors on the law rather than anything said or not said by Mr Smith. These observations might be seen as more relevant to the question of causation but I mention them because in deciding whether there was any negligence on Mr Smith's part, it is important to consider the context in which the negligent act is said to have occurred. Having done so I am not satisfied that Mr Smith's comments to the jury on the operation of s 409 were made negligently. I am also mindful of the fact that error does not equate with negligence as long as the requisite degree of care and skill has been exercised (Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 53 - 54). There is no evidence before me that Mr Smith failed to exercise the requisite degree of care and skill in preparing for and making his submissions to the jury. It seems that both he and the learned trial Judge were labouring under a misunderstanding as to the true legal position.

30 The seventh particular is that Mr Smith failed to make submissions to the Judge and jury concerning the relevance of the plaintiff's previous good character in a charge involving fraud. This allegation can be coupled with the eighth particular which is that Mr Smith failed to investigate and obtain independent evidence and witnesses as to the previous good character of the plaintiff and failed to address such evidence or call witnesses at the trial to give such character evidence. The first thing that needs to be said in relation to these allegations is that the plaintiff gave evidence at the criminal trial that he had no prior convictions and this was not in dispute. He was not cross-examined on the point and no evidence was led by the prosecutor to suggest that the position was other than as stated by the plaintiff. On the contrary, there was some reference to matters which might have been seen to be adverse to a finding of good character, in particular the plaintiff's gambling habit and the fact that he was suffering from depression. However, these matters were raised by the plaintiff himself in his evidence. Moreover, whilst Mr Smith did not say anything in particular about the plaintiff's good character in his closing submissions, equally the learned trial Judge failed to mention the plaintiff's good character. The Court of Criminal Appeal observed that in a trial involving allegations of fraud, it is incumbent upon the trial Judge to refer, in his or her charge to the jury, to the fact that an accused person has no prior convictions because of its relevance to the subjective state of the accused's mind where he has given

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evidence claiming a belief consistent with innocence. The Court of Criminal Appeal concluded that in failing to refer to the plaintiff's good character the learned trial Judge misdirected the jury and that for this separate reason the plaintiff's trial miscarried.

31 Notwithstanding some inconsistency on the plaintiff's part as to whether he gave the names of character witnesses to Mr Smith at the meeting in September 2000, I am prepared to accept, on the basis of Ms Fisher's evidence, that several names were provided to Mr Smith. Whilst it may have been prudent to call those witnesses, failure to do so does not in my view amount to negligence. There may be good reasons for not wishing to call character evidence. Where an accused person has no previous convictions, counsel may conclude that the existence of an unblemished record is the high water mark of the accused's good character and that introducing witnesses who can speak of the plaintiff's background and past may reveal facts which will detract from the quality of the idea left with the jury that the person with whom they are dealing has never been in trouble before. In the circumstances of this case I am not at all satisfied that it was negligent of Mr Smith not to call the character witnesses nominated by the plaintiff.

32 For the above reasons I am of the view that the plaintiff has failed to establish any negligence on the part of Mr Smith and, it follows, on the defendant's part. The plaintiff's claim must therefore fail. Notwithstanding this conclusion, however, it must be said that the defendant's submission of no case to answer does not rest solely on my finding that the allegations of negligence have not been established by the plaintiff. Counsel for the defendant contends that there are more fundamental difficulties with the plaintiff's case and his submission was in four parts. I will deal with each in turn.

33 First, submissions were made as to the evidential considerations. Second, it is said that each of the matters raised in particulars 3 - 9 of the alleged negligence were acts or omissions relating to the conduct of the trial or a preliminary decision affecting the way in which the trial was to be conducted and therefore attracted the advocate's immunity from suit. It was also suggested that particulars 1 and 2, whilst not as clear-cut as particulars 3 - 9, also fell within the immunity. Third, the defendant contended there was no evidence at all that any of the alleged acts of negligence were causative, in the relevant sense, of the conviction and imprisonment of the plaintiff, particularly as the plaintiff was convicted by the decision of a jury and the basis of that decision is unknown and unknowable. Fourth, the defendant, who is said in the statement of claim

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to be Mr Smith's employer, was not Mr Smith's employer at all and was not vicariously liable for Mr Smith's acts or omissions. It was submitted that Mr Smith was employed by the Legal Aid Commission of Western Australia pursuant to s 20(2) of the Legal Aid Commission Act 1976. The Legal Aid Commission of Western Australia is a body corporate that may be sued in its own name. The defendant's functions and powers as Director are described in the Act and, it was submitted, do not impose an obligation upon the defendant to supervise the professional work of legal practitioners employed by the Commission. The plea in the defence that the defendant was immune from liability for any act or omission by him in good faith and in the exercise of his powers, functions or duties under the Act was not, as I understand it, actively pursued by the defendant. By this I mean that the defendant made no submissions in support of that plea but by the same token it was not abandoned. However, in relation to the immunity point, counsel for the defendant submitted that the defendant was entitled to rely upon any immunity from suit held by Mr Smith with respect to any claim that may have been brought against Mr Smith by the plaintiff.

34 In order to establish the plaintiff's claim there must be evidence on which the court is able to find that:

(1) Mr Smith was negligent;

(2) the defendant is liable for Mr Smith's negligence;

(3) the alleged negligence caused the plaintiff's conviction and imprisonment; and

(4) the plaintiff has suffered loss and damage as a result of the conviction and imprisonment.

35 I will not repeat here what I have said about the plaintiff's evidence in relation to the alleged negligence. It is sufficient to say that for the reasons already given I am not satisfied that any of the allegations made by the plaintiff amount to negligence on the part of Mr Smith and therefore of the defendant. Nevertheless, I cannot leave this aspect of the case without commenting upon allegations made by the plaintiff regarding the credibility of certain prosecution witnesses at his criminal trial. In his evidence before me the plaintiff frequently accused particular witnesses, bank officers in the main, of lying or giving false evidence during his criminal trial. However, any reasonable analysis of that evidence does not support such a conclusion. At best the evidence suggests that the plaintiff has adopted a particular view of the way in which banking practices were

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undertaken by the National Australia Bank or BankWest whereas the officers who gave evidence adopted a different view. The plaintiff sought to make much of these matters. He thought that the falsity of this evidence could be demonstrated if Mr Smith had undertaken the process of investigating the records of the National Australia Bank and BankWest. I have already found in these reasons that such instructions were not given to Mr Smith but I think the plaintiff's description of certain witnesses as lying or giving false evidence tends to highlight the plaintiff's belief that as this evidence was at the centre of his downfall, Mr Smith must have been instrumental in that downfall by not identifying that the evidence was false. However, even if Mr Smith had received the instructions alleged to have been given to him by the plaintiff, on the evidence before me it is not possible to conclude that he would have found anything which was false in the evidence of the bank witnesses or the documentation tendered by them. Accordingly, I am not satisfied that the plaintiff's position at his criminal trial would have been improved had Mr Smith undertaken an investigation of the kind suggested by the plaintiff.

36 Insofar as the question of immunity from suit is concerned, it is worth noting that at the plaintiff's first meeting with Mr Smith on 19 September 2000, Ms Fisher recalled discussion on the plaintiff's banking practices and the calling of witnesses as to his good character. These were matters which were directed to the way in which the trial would be conducted and what evidence might be required in relation to the plaintiff's defence. I mention this because at common law a barrister cannot be sued by his client for negligence in the conduct of a case in court or in work out of court which leads to a decision affecting the conduct of the case in court (Giannarelli & Anor v Wraith (1988) 165 CLR 543). This immunity rests on considerations of public policy, in particular the peculiar nature of the barrister's responsibility when he appears for his client in litigation and the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings (Giannarelli & Anor v Wraith at 555). In the context of these proceedings it is worth repeating the comments of Pollock CB in Swinfen v Lord Chelmsford (1860) 157 ER 1436 at 1449:

"The conduct and control of the cause are necessarily left to counsel ... A counsel is not subject to an action for calling or not calling a particular witness, or for putting or omitting to put a particular question, or for honestly taking a view of the case which may turn out to be quite erroneous. If he was so liable,

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counsel would perform their duties under the peril of an action by every disappointed and angry client."

Pollock CB's comments were cited with approval by the High Court in Giannarelli & Anor v Wraith (at 555 - 556).

37 Insofar as in court negligence is concerned, no distinction is drawn between barristers and solicitors such that the immunity applies with equal force to a solicitor who acts as an advocate. However, the public policy considerations whereby immunity is afforded to the advocate do not apply to work done out of court which is unconnected with the work done in court (Saif Ali v Sydney Mitchell & Co [1980] AC 198; Giannarelli & Anor v Wraith at 559). The difficulty lies in determining where the immunity starts and ends. As the High Court observed in Giannarelli & Anor v Wraith, preparation of a case out of court cannot be divorced from presentation in court because the two are inextricably interwoven. Put another way, the immunity will apply where the particular work is "so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing" (Rees v Sinclair [1974] 1 NZLR 180 at 187). See also to the same effect Giannarelli & Anor v Wraith at 560 and Keefe v Marks (1989) 16 NSWLR 713 at 719, 724 - 725, 729.

38 Applying the above principles to the circumstances of this case, it seems to me that each of the particulars of negligence dealing with Mr Smith's acts and omissions before the trial were intimately connected to the conduct of the plaintiff's case at trial. The plaintiff suggested that Mr Smith, wearing his barrister's hat, would have arranged for Mr Smith, wearing his solicitor's hat, to attend to the matters referred to in particulars 1, 2, 3, 4 and 5 and so he had no immunity from suit in relation to those five matters. Arguably this may be so but equally they are matters which may very well be undertaken by the barrister in the process of informing himself as to the issues confronting his client and the best way of dealing with those issues at trial. In any event, I think this is only part of the equation. Even if those tasks may have been undertaken by a solicitor in the first instance, there is little doubt that prior to the trial the barrister would meet with the client to settle any draft proof of evidence taken by the solicitor, he would consider the transcript of the interview between the client and the police officers in order to determine his approach to its contents, he would study any documentary evidence obtained regarding the client's banking practices and he would, if thought necessary, direct that further or other such evidence be sought for his

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consideration. In my view it would be artificial in the extreme to suggest that particulars 1, 2, 3, 4 and 5 can only be classified as the work of a solicitor and never that of a barrister. Whilst every case will turn on its own facts, such a proposition defies the reality of what very often takes place in preparing for a criminal trial and the essential aspects of the work which a barrister undertakes in readying himself for trial. In all the circumstances I am satisfied that the barrister's immunity afforded to Mr Smith is complete in respect of each of the allegations of negligence pleaded by the plaintiff.

39 The next issue raised in the defendant's submission was that of causation. This submission can be put very simply: even if Mr Smith was guilty of each and every alleged act of negligence, what evidence is there that one or more of those acts caused the plaintiff's conviction? In my view this must be right. The jury's decision is not known to anyone other than the members of the jury themselves and it is not capable of being the subject of evidence in collateral proceedings of this kind. It is bare speculation for the plaintiff to conclude, as he does, that he would not have been convicted if Mr Smith had not acted or failed to act in the way particularised in the statement of claim. I am unable to see how I could find, on the balance of probabilities, that anything done or not done by Mr Smith caused the plaintiff's conviction and imprisonment. In this respect I refer to the comments of the House of Lords in Rondel v Worsley [1969] 1 AC 191 at 250 regarding the folly of reliance upon speculation of this kind. The burden of proof which is reposed in the plaintiff is not discharged by his indulging in a speculative process as to what the jury might or might not have done had the circumstances been different. Accordingly, I find that the plaintiff has failed to demonstrate any causal link between the alleged acts and omissions of Mr Smith on the one hand and the plaintiff's conviction and imprisonment on the other.

40 I now turn to the question of vicarious liability. Section 20(2) of the Legal Aid Commission Act is in the following terms:

"Subject to this Act the Commission may, from time to time, employ as members of the staff of the Commission such practitioners and other persons as it considers fit ... "

The term "practitioner" in s 20(2) means a barrister and solicitor of this Court.

41 It is clear from these provisions that the Commission employed Mr Smith. There is no suggestion elsewhere in the Act that legal practitioners including Mr Smith were employed by the defendant. As I

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understand the plaintiff's claim, the vicarious liability contended for by him rests on the relationship of employer-employee which the plaintiff says existed between the defendant and Mr Smith. In view of the provisions of the Act, no such relationship existed. However, putting that to one side, was there any other basis on which the defendant was vicariously liable for Mr Smith's conduct?

42 The defendant's functions and powers are set out in s 19 of the Act which at the relevant time were in the following terms:

"(1) the Director shall -

(a) subject to the Commission, administer the scheme of legal assistance established by this Act;

(b) as and when required by or under this Act, provide legal services to assisted persons and arrange and supervise the provision of such services by practitioners who are members of the staff.


(2) the Director may do all things that are necessary or convenient to be done for or in connection with the performance of his functions;

(3) subject to the Legal Practitioners Act 1893 the Director may have articled clerks articled to him."

43 Is the defendant obliged by the above provisions to supervise the professional work of legal practitioners employed by the Commission? Although counsel for the defendant submitted that there was no such obligation on the defendant, there is no suggestion in the Act that the supervision required of the defendant ought to be confined to supervision of an administrative nature as distinct from supervision of a professional nature, particularly as the defendant is also a legal practitioner by reason of s 18(2) of the Act. I also observe that the provisions of s 19(3) enable the defendant to have articled clerks articled to him which suggests that his supervisory role is to be seen as a professional one. In my opinion the defendant's obligation to provide legal services to assisted persons and to arrange and supervise the provision of those services by practitioners who are members of the staff means that the defendant was obliged to professionally supervise and oversee the work of legal practitioners such as Mr Smith. For these reasons I consider that the defendant was vicariously liable for Mr Smith's conduct. However, this conclusion is

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entirely academic in view of my earlier findings in relation to the absence of negligence, the lack of any causal connection between Mr Smith's conduct and the plaintiff's conviction and imprisonment, and Mr Smith's immunity from suit. Further, and in any event, I accept the defendant's submission that he is entitled to rely upon the immunity from suit that Mr Smith has with respect to any claim that may have been brought against Mr Smith by the plaintiff (Bell v State of WA [2004] WASCA 205 at [25] - [35]). This action could have been brought against Mr Smith personally and, if that course had been adopted, Mr Smith would have been able to rely upon the immunity from suit in respect of the acts of negligence pleaded in the statement of claim. Accordingly, the defendant is also entitled to the benefit of that immunity.

44 The final issue raised by counsel for the defendant in making the no case submission was that the plaintiff had not established any loss or damage as a consequence of his conviction and imprisonment. I have already referred to the particulars of loss and damage pleaded in the statement of claim. In that regard the evidence of the plaintiff and Ms Fisher was that the plaintiff is currently working as a consultant in the mining and drilling industries. It seems that he has been doing so since 2002. He agreed in his evidence that he has a capacity to earn an income and is exercising that capacity. Insofar as it is pleaded that he has suffered psychological and psychiatric sequelae and now suffers from depression and an acute major adjustment disorder, there was no evidence from any medical practitioner that this is the case. The only medical evidence before the court was in the form of a report of a psychiatrist, Dr Obiri-Boateng, which was to the effect that when he saw the plaintiff in August 1999 he diagnosed him as suffering from a Major Depressive Disorder and Alcohol Dependence Syndrome. It is to be noted that this was more than a year before the plaintiff met Mr Smith or was represented by him in his criminal trial. There was no evidence to suggest that his psychiatric condition had worsened as a result of his conviction and imprisonment.

45 The statement of claim also pleaded that the plaintiff's good character has been irretrievably lost but no evidence was called from anyone who was associated with the plaintiff before the trial to the effect that they thought less of him as a result of what had occurred. Finally, there was the question of the plaintiff's lost earnings when he was sent to prison. Whilst it is plain that the plaintiff would not have been able to continue working during his time in prison, the nature of the evidence put before me in that regard was not entirely satisfactory. It comprised correspondence sent by a Mr Ken Green of Mathews Drilling Services Pty

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Ltd to the plaintiff to the effect that the plaintiff's services had been terminated as a result of his conviction. However, Mr Green was not called (I was told that he is overseas) and I give little weight to Mr Green's letters bearing in mind that the defendant was denied the opportunity of cross-examining Mr Green as to the alleged arrangements between the plaintiff and Mathews Drilling Services Pty Ltd. In this respect I note that Mr Green was a signatory to the agreement dated 23 May 1999 but created earlier this year to which I have already referred in par 21 of these reasons. In any event, no taxation or other financial evidence was put before me in relation to the plaintiff's earnings prior to his imprisonment and since his resumption of work in 2002 to enable me to make an assessment of the plaintiff's alleged loss in the interim period. Once again, however, none of this matters in light of my findings on the question of liability.

46 In conclusion and for the reasons set out above, I uphold the submission of no case to answer and dismiss the plaintiff's claim.