DAY v PERISHER BLUE PTY LTD [NO 2] [2005] NSWCA 125

New South Wales Court of Appeal

CITATION: DAY v PERISHER BLUE PTY LTD [NO 2] [2005] NSWCA 125

HEARING DATE(S): 19 April 2005

JUDGMENT DATE: 20 April 2005

JUDGMENT OF: Sheller JA; McColl JA; Windeyer J

DECISION: Direct the Registrar of the Court of Appeal to refer to the Legal Services Commissioner this judgment, the judgment of the Court of 11 April 2005 and the appeal papers in appeal CA 40936/03 to investigate whether, having regard to the conduct of Geoffrey Robert Brookes and Michael Kevin Connelly when acting for the defendant, Perisher Blue Pty Ltd, in the proceedings, he ought to initiate a complaint against either or both pursuant to the Legal Profession Act.

CATCHWORDS: PROFESSIONAL CONDUCT - whether conduct of solicitors should be referred the Legal Services Commissioner

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12

Darrel Justin Day - Appellant PARTIES: Perisher Blue Pty Ltd - Respondent

FILE NUMBER(S): CA 40936/03

COUNSEL: Dibbs Barker Gosling - T F Bathurst QC/M Tyson

SOLICITORS: Dibbs Barker Gosling - Ebsworth & Ebsworth

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 7158/01

LOWER COURT JUDICIAL OFFICER: Patten DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40936/03 DC 7158/01

SHELLER JA McCOLL JA WINDEYER J

Wednesday, 20 April 2005 DAY v PERISHER BLUE PTY LTD [NO 2] Judgment 1 THE COURT: On 11 April 2005 the Court as presently comprised allowed this appeal and made consequential orders including order 6 as follows: 6. The defendant's solicitors to have 7 days from the date of this judgment to show cause why, after the proceedings are disposed of by a new trial or otherwise, the judgment and the appeal papers should not be referred to the Legal Services Commissioner. 2 The defendant's solicitors, Dibbs Barker Gosling, represented by Mr Bathurst QC and Mr Tyson, instructed by Ebsworth & Ebsworth, applied to the Court on 19 April 2005 on appropriate notice to show cause why there should not be such a referral. In support of the application, two affidavits were read, both sworn on 19 April 2005, one by Geoffrey Robert Brookes, a partner in the firm of Dibbs Barker Gosling, and the other by Michael Kevin Connelly, a solicitor employed between August 2001 and March 2004 by Dibbs Barker Gosling. 3 During the course of the hearing of the proceedings, the subject of the appeal, before his Honour Judge Patten in the District Court there was admitted into evidence a letter dated 3 July 2003 from Mr Connelly to the defendant in the proceedings, Perisher Blue Pty Ltd, attention Ken Randall. The letter was subscribed "Partner Responsible: Geoffrey Brookes". In the judgment of Sheller JA the terms of the letter are set out in full. 4 Also in evidence was a document headed "Witness Protocols for Court Cases and Arbitration Hearings". A substantial part of that document was also set out in the judgment of Sheller JA.. 5 As appears from the evidence set out or summarised in the judgment of Sheller JA including the letter of 3 July 2003, a teleconference took place on 27 June 2003. "The relevant witnesses" took part. Also both Mr Brookes and Mr Connelly took part. One witness for the defendant, Mr Darryl Dean, took part in the teleconference and identified other of the defendant's witnesses, who also took part. In the course of his judgment Sheller JA said: "30 It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer's case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, 'Not about facts about credibility'."