Rees v Bailey Aluminium Products Pty Ltd

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 7149 of 2002

GARY REES Appellant
v
Respondent BAILEY 		ALUMINIUM PRODUCTS PTY

LIMITED

and

BARRY PHILLIPS Third Party

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JUDGES: ASHLEY and REDLICH JJA and COGHLAN AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 13 and 14 March 2008
DATE OF JUDGMENT: 5 December 2008
MEDIUM NEUTRAL CITATION: [2008] VSCA 244

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Legal practitioners – Duties of counsel – Repeated misconduct of counsel for defendant in course of civil trial for damages for personal injuries – Unjustified allegation of fraudulent collusion between plaintiff and third party – Improper cross-examination – Breach of the rule in Browne v Dunn (1893) 6R 67 – Failure to follow the procedure in R v Orton [1922] VLR 469 - Introduction of extraneous matters in closing address – Failure of counsel for plaintiff to sufficiently object or seek directions – No application for discharge of jury – Refusal of trial judge to vacate jury verdict – Whether judgment for defendant should be set aside –Assessment of prejudicial effect of counsel’s misconduct upon jury – Appeal allowed.

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APPEARANCES:  Counsel Solicitors
For the Appellant  Mr J Kennan SC with Clark & Toop
Mr A D B Ingram
For the Respondent  Mr R J Stanley QC with Hall & Wilcox
Mr S A O’Meara
For the Third Party  Mr S Reid Rigby Cooke Lawyers
ASHLEY JA: 
REDLICH JA: 
COGHLAN AJA 

  1. The appellant seeks to set aside a judgment of the Supreme Court following the verdict of a jury which rejected his claim for damages for personal injuries brought against the respondent, as the manufacturer and distributor of an extension ladder. The appeal primarily raises the question whether the appellant received a fair trial as a consequence of the conduct of senior counsel for the respondent;[1] and, relatedly, whether there was any failing by the learned trial judge to deal adequately with such conduct.

    [1]              It is convenient to note immediately that neither senior nor junior counsel who appeared for the respondent in this Court was trial counsel. So also, senior counsel who appeared for the appellant in this Court was not trial counsel.

  2. The appellant, a plumber, attended the premises of his friend, Barry Phillips, to help him with the installation of some down pipes. Phillips, an inspector employed by WorkCover, had placed an extension ladder manufactured by the respondent in an over extended position against the side of the house for the use of the appellant. As the appellant was standing on the ladder, it collapsed and he sustained injuries. It was not in dispute that the ladder collapsed because it was in an over-extended position. The appellant claimed that the ladder could be easily over-extended because it was defectively designed.

  3. The respondent commenced third party proceedings seeking contribution from Phillips for any sum which the appellant might recover against it on the basis that Phillips had been negligent - by providing the extension ladder to the appellant when it was not in a safe condition and by over-extending…

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Details
Case
[2008] VSCA 244
Decision Date

CaseChat Overview and Summary

Rees v Bailey Aluminium Products Pty Ltd is a case in which the respondent sought to appeal the outcome of a civil trial in the County Court of Victoria. The respondent alleged that the trial was unfair due to repeated misconduct by counsel for the defendant, including unjustified allegations of fraudulent collusion between the plaintiff and a third party, improper cross-examination, and the introduction of extraneous matters in the closing address. The primary legal issue before the court was whether the conduct of counsel for the defendant exceeded what is permissible and whether the misconduct prejudiced the respondent's case to such an extent that the trial should be considered unfair. The court was also tasked with determining the appropriate remedy, if any, for the alleged misconduct.

The court examined the nature and extent of the alleged misconduct, considering that while some degree of error in the conduct of a vigorously contested trial may be accidental, the conduct in this case went beyond permissible advocacy. The court emphasised the importance of maintaining the principles of a fair trial, noting that each party is entitled to a fair opportunity to present their case. The court held that the misconduct by counsel for the defendant was extensive and occurred at multiple points throughout the trial, which heightened its potential for prejudice. Despite the trial being lengthy and the verdict not being aberrant, the court concluded that the misconduct had the potential to be decisive in a case where the evidence did not clearly favour the respondent. The court found that the trial judge erred in not vacating the jury verdict due to the misconduct.

In light of the findings, the court allowed the appeal and ordered that the judgment for the defendant be set aside. The court emphasised that the appeal was not based on the merits of the respondent's case, but rather on the unfairness of the trial process due to the misconduct of counsel for the defendant. The court's decision underscored the importance of maintaining ethical standards and permissible advocacy in legal proceedings to ensure a fair trial for all parties involved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Whether the conduct of counsel exceeds what is permissible will usually be a question of degree, as it must be recognised that accidental errors will occur in the conduct of a vigorously contested trial where searching cross examination and forceful advocacy can be expected.[6] The respondent relied upon the adage that the common law jurisdiction is a robust one in which counsel are given considerable latitude.[7] But the principles of a fair trial are not to be diluted or compromised because the jurisdiction may encourage robust advocacy. Although a civil trial is adversarial in nature, each party is entitled to a fair trial in which they are afforded a reasonable opportunity to present their case; determination of the proceeding resting upon consideration of admissible evidence placed before the tribunal of fact. The litigant is entitled to have his or her case fairly tried free from intrusion of any extraneous matter calculated to influence the jury,[8] counsel observing the rules of evidence, adhering to well recognised ethical standards and remaining within the bounds of permissible advocacy.[9] Allegation that the third party’s evidence was a concoction and was the subject of fraudulent collusion between the appellant and the third party [6] Libke v R (2007) 230 CLR 559, [37] (Kirby and Callinan JJ) [7] Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1620, [121]. Kirby J referred to the old days of civil jury trials, where parties would fight such cases with as much bluster and prejudice as they could respectively get away with. [8] Croll v McRae (1930) 30 SR (NSW) 137, 143 (Street CJ); Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242; Smout v Smout [1989] VR 845, 854 (Beach J). [9] Strange v Hybinett (1988) VR 418, 422-3 (Murphy J), 423 (Gray J). In cross-examination, Phillips acknowledged that he realised the importance to both himself and the appellant of his assertion that he never knew about the stops on the ladder. He explicitly rejected a suggestion by counsel for the respondent that he had had a discussion with the appellant about what he would say in his evidence about the stops. He testified that three days before the court hearing the appellant and his solicitor came to his home to take some photographs of the ladder. The following cross-examination then occurred: As we have said, the cross-examination of Phillips was to the effect that his account that the ladder could be over-extended without hindrance from the stops was false. On appeal, counsel for the respondent accepted that it was the inescapable conclusion that the impugned cross-examination had been intended to raise the suggestion that there had been improper discussion between the appellant and Phillips - both some days before trial and outside Court during the trial; and that Phillips’ false evidence that the stops were ineffective was a consequence of this collaboration with the appellant. The trial judge recognised that an allegation of impropriety was being made. Her Honour said so in front of the jury. But what she said was confined to an inquiry as to whether it was being suggested that the appellant’s solicitor had been involved in any impropriety on the earlier of the two occasions. Counsel for the respondent disavowed any suggestion that his cross examination had been intended to suggest impropriety on the part of the solicitor. The exchange left open the unmistakable suggestion that an allegation of impropriety was being pursued against the appellant and Phillips. Breach of the rule in Browne v Dunn

Decision

Reasons for decision

The verdict here was explicable. It was not obviously aberrant. It may well have represented a conclusion that the ladder was only able to be over-extended because of long misuse or damage; or perhaps a conclusion that Phillips had not recognised impedance to over-extension, created by the presence of the stops, as a warning sign. But whilst it may be said that an aberrant result in association with counsel’s misconduct may tend to suggest that the former is the product of the latter, it may be doubted that it can be safely concluded that an explicable verdict in the presence of such misconduct tells against the misconduct having been, actually or potentially, operative in the verdict. It may be said that in a finely balanced, or difficult, plaintiff’s case, such misconduct might provide the tipping-point. The conclusion that a trial was unfair is not dependent upon an assessment that the disadvantaged party was likely to have succeeded were it not for the improper conduct. Conclusion Each particular of the misconduct we have examined was capable of working prejudice against the appellant. In assessing whether the degree of prejudice resulting from such misconduct was of such an order as to justify allowing the appeal, it is necessary to have regard to all of the circumstances of the trial. We should not recapitulate everything which we have said in our examination of the complaints which were agitated on the appeal, or with respect to the problems with counsel’s opening or the demonstrated operation of the ladder which became apparent on our reading of the transcript. But it is well to remember a number - not all - of the matters which disclose the scope of counsel’s misconduct. Thus - The scope of the misconduct, and the fact that it occurred at a number of different points during the trial - rather than being a single incident on a confined occasion – in our opinion heightened its potential for prejudice. That is so although the trial was a lengthy one. On the other hand - The consequence of the last two matters just mentioned, in our opinion, is that the appellant bore a heavy burden in seeking to establish that the trial miscarried. The first and second of those matters have a different significance. As to the first of them, it may be said that the appellant’s case was far from being a strong one. But it does not follow because the verdict was not aberrant that prejudice was not operative. Indeed, its potential to be decisive might be said to be the greater in a case in which the evidence did not stand plainly in favour of a verdict for the appellant;[98] and in which, as was here the situation, the appellant’s case was made vulnerable by the nature of the attack upon the third party. [98] See [135] above. We turn to the judge’s decision not to vacate the jury verdict. It was not founded upon the merits of the complaints then raised.[99] The learned judge did express the opinion, however, that senior counsel for the respondent had not exceeded the bounds of permissibly robust advocacy. We respectfully disagree with that opinion. [99] See [5] above.

Ratio Decidendi

Legal Principle Established

The appellant complains that the objection to the question was never dealt with and no retraction was made of the assertion in front of the jury that the appellant had agreed that a ladder on the last rung was a complete recipe for disaster. In cross-examination the appellant had agreed with the suggestion that he knew that if the ladder was in an over-extended position it was a recipe for disaster to climb on it. There was no difference of any moment between what was put by counsel for the respondent and the answer in fact given by the appellant. In any event, when the trial resumed on the following Monday morning, no request was made that the trial judge rule upon the objection that had been taken nor was it dealt with in appellant counsel’s closing address. We put this complaint aside. In-Court demonstrations (e) On appeal, respondent’s counsel placed reliance upon the fact that the ladder was over-extended in court a number of times during cross examination of witnesses. It was submitted that these demonstrations focussed the jury’s attention on the fact that the ladder could not be over-extended without manipulating it past the stops. In the respondent’s closing address at trial, reference was made to the fact that during the various attempts in court to over-extend the ladder, it always hit the stops. It was submitted for the respondent in this Court that the jury had not been deflected or improperly influenced by its counsel’s conduct. Respondent’s counsel used the ladder in court to undermine the credit of both the appellant and Phillips and in a manner which indirectly bore upon the suggestion of collaboration between them. There was an extensive discussion in the absence of the jury as to how counsel for the respondent might use the extension ladder in the course of cross-examining the appellant. The trial judge ruled that counsel was not to attempt to over-extend the ladder during cross-examination of the appellant, but could commence by having the ladder in an over-extended position and then drop it down to a properly extended position so as to establish the difference in appearance of the ladder in both positions. This ruling rested upon the fact that the respondent was not alleging that it was the appellant who had over- extended the ladder, it being in substance contended that the appellant was negligent in not recognising that it was in an over-extended position when he climbed it. In cross-examination, respondent’s counsel sought to establish, through the appellant, that the person who had over-extended the ladder must have known that he had done so; and would have had to manipulate the ladder to get past the stops. Although the precise manner in which the ladder was used during the course of this questioning is not made clear on the transcript, it appears that without objection, and contrary to the ruling of the trial judge, the ladder was then used in an attempt to demonstrate that it could not be over-extended without manipulating it to pass the stops. The appellant was questioned about his knowledge of such ladders and the existence of the stops to prevent over-extending. Little or no objection was taken to the extensive cross-examination which appeared to be directed to the credibility of Phillips’ claim that he was not aware of the stops - an issue about which the appellant could give no relevant evidence.