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'." See also per McHugh J in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [111]. 6 The witness, Mr Laing, produced both the letter and "the protocol" which were tendered. There was no evidence that the protocol emanated from the solicitors. No suggestion was made that it had. As Sheller JA pointed out in his judgment at para 24, all that is known is that the protocol found its way into the hands of Mr Laing. Mr Laing was never asked where he got the document. The Court ordered a new trial because Judge Patten, in giving his reasons for judgment, never dealt with that part of the plaintiff's written submissions directed to the attack on the credibility of several of the defendant's witnesses including those already mentioned, whose evidence the Judge had accepted, as a result of their taking part in the teleconference and otherwise in discussing their evidence with other witnesses for the defendant. Sheller JA said: "35 I regard what happened here as of sufficient seriousness prima facie for the papers to be sent to the Legal Services Commissioner. While I accept that it is arguable that the various witnesses' credibility could have survived the attack made upon it in reliance on the solicitors' letter and the teleconference, the trial Judge's failure to deal with these submissions leads to the conclusion that in the result his Honour failed to have regard to critical evidence. Accordingly the verdict and judgment must be set aside and a new trial ordered; compare Mifsud v Campbell (1991) 21 NSWLR 725 at 728." 7 Before referring to the affidavits relied upon by the solicitors in showing cause why there should be no reference, we note that the solicitors' is sworn evidence. However there is no contradictor. 8 We deal first with Mr Brookes' affidavit. Mr Brookes acknowledges that he took part in the teleconference on 27 June 2003 and that Mr Connelly was with him. He acknowledges by name persons present at the conference who were subsequently witnesses. Included was Mr Dean. He deposed: "9 I did not understand the teleconference to be a conference for the purpose of witnesses discussing amongst themselves the evidence that they would give at the trial. I deny that I intended to participate in the conference to ensure that in giving evidence the defendant's witnesses would all speak with one voice about the events that occurred. 10 I recall that the purpose behind my taking part in the teleconference was to deal with procedural matters consisting of the following: instructing / advising witnesses that each had to read his statement, telling witnesses where they would stay when they went to Sydney, telling witnesses what arrangements would be made in relation to meals and out-of-pocket expenses, telling witnesses what to wear in Court, telling witnesses that they were expected to meet with counsel for the defendant and each have a conference with him about their evidence, telling witnesses about the period for which the case was listed and telling witnesses about travel arrangements from Perisher to Sydney. I also contemplated that I would be available to answer any questions the witnesses may have had about these matters." 9 According to Mr Brookes the teleconference went for approximately 20 to 25 minutes before it concluded. He referred in general terms to what was discussed at the teleconference and said: "12 I do not recollect that the contents of any person's witness statement or likely evidence was discussed or raised at the teleconference. It was not the case that at the teleconference any person was told what the contents of their evidence should be at trial. I do not recollect that there was any discussion about the form the evidence should take, with the exception that I believe that [I] said and repeated something like, or to the effect of, 'stick to the matters about which you have given evidence in your witness statements' to the Perisher Blue persons at the other end of the telephone line." 10 A little later Mr Brookes swore that the teleconference was regarded by him as an opportunity to give the witnesses the chance to understand the court processes in the sense, and only in the sense of telling the witnesses when the hearing would start, what time court would start, about what to wear in court and about being polite in court. "14 … The teleconference was regarded by me as an opportunity to give the witnesses an opportunity to understand what was expected of them in the sense, and only in the sense, of the expectation that each witness would travel to Sydney for the hearing, would make himself available for a conference with counsel before the trial and that each witness was expected to appear in Court for the purpose of giving evidence." 11 Further, Mr Brookes did not expect the 3 July 2003 facsimile to Mr Randall would be distributed to witnesses or would lead to a situation where the defendant's witnesses could see his comments with respect to the other witnesses. Mr Brookes went on to deal with particular numbered sub-paragraphs in Sheller JA's judgment as follows: "17 ' 4. So far as Darryl Dean is concerned, the solicitor expected it would be necessary for him to give evidence with respect to the following: 'set up lift queues at Perisher Blue – in short his evidence would be to simply refute the allegation that the design and layout of the lift queue at Guthega on the day in question was not consistent with the best practice at Perisher and resorts elsewhere in Australia and overseas' .' Darryl Dean had previously provided a statement of his evidence and it had been planned that he was to give evidence at the arbitration hearing of these proceedings that had taken place a year before the hearing before Judge Patten. Mr Dean was in Sydney for the arbitration. I was not suggesting to Mr Dean in this letter of 3 July 2003 what his evidence would be. I never have suggested to Mr Dean what the contents of his evidence would be. In the facsimile dated 3 July 2003 I was confirming what I already knew to be Mr Dean's account of his evidence. 18 '5. Mr Dean was expected to familiarise himself with the distance between where Mr Day would have been working and the position of the lift stop button 'ie. we intend to present evidence that it was reasonable to believe that Mr Day could have reached the stop button relatively quickly and with little effort or movement despite an alleged injury)'. I did tell Mr Randall what evidence I was intending to present, however Mr Randall was not a witness in the case. As stated above, Mr Randall was the person with whom I normally had contact to obtain instructions and to report to in terms of the handling of litigation in respect of which I had carriage. I had no expectation that reports from me on the litigation would then be distributed amongst witnesses. 19 As for the matters in respect of which Mr Dean had to familiarise himself, in circumstances where there was quite some delay between the time of the trial and the incident about which Mr Day complains, I did want Mr Dean to re-familiarise himself so that he would be able to answer all questions from the defendant's counsel at conference and be able to deal with cross-examination from the plaintiff. 20 '6. Mr Randall was to appreciate that the solicitor asked Mr Dean to satisfy himself 'so he is not open to cross-examination on areas where he has only been prepped by ourselves or Perisher Blue'. Neither I nor any solicitor employed by me ever 'prepped' a witness in the sense of telling the witness what his evidence should be. I have no knowledge of Perisher Blue Pty Ltd ever 'prepping' a witness in the sense of telling the witness what his evidence should be. 21 The object of my comment to Mr Randall was so that he could pass on to Mr Dean that Mr Dean had to make his own inquiries and familiarise himself with the relevant matters. The comment was designed for the very purpose of ensuring that Mr Dean would not be influenced by any source other than his own inquiries. 22 '7. As to Mr Bevin 'make enquiries and satisfy himself (or based on your own experience) that the system of setting up queue gates at Perisher Blue is consistent with other resorts in Australia and internationally'. Mr Bevan had previously provided a statement and version of events. I was not intending to suggest to Mr Bevan and have never suggested to him what the contents of his evidence should be. The object of my comment to Mr Randall was so that he could pass on to Mr Bevan that Mr Bevan had to make his own inquiries and familiarise himself with the relevant matters. The comment was designed for the very purpose of ensuring that Mr Bevan would not be influenced by any source other than his own inquiries. 23 '8. The solicitor's note 'in the teleconference that Mr Bevin is available in any event and will be making every effort to assist Perisher Blue and ourselves in the running of the matter'. I had previously been retained by Perisher Blue in litigation matters before the subject District Court proceedings. One aspect of conducting cases for this company about which I have become aware is that the workforce is seasonal. Witnesses can be difficult to contact and arrange for Court attendance. With respect to Mr Bevan, I had been considering the issue of a subpoena for his attendance at the trial. I was merely noting in the facsimile that Mr Bevan had been located and that he had agreed to attend the trial. Mr Bevan was available in that sense and he was available to assist Perisher Blue in that he would attend a conference with counsel for the defence prior to the trial and attend at the trial." 12 In the course of his judgment Sheller JA said that the letter or facsimile was marked "copies to Darryl Dean, Chris Bevin and Jai Palmer". This was handwritten on the letter. Mr Brookes said he did not recognise the handwriting and that it was not his intention or anticipation that the defendant provide the letter to each of the witnesses intended to be called at the hearing. He further said that the witness protocol document was not prepared by him or to his knowledge by Dibbs Barker Gosling. He had never seen the document "prior to it being produced by Alex Laing during the course of the District Court hearing". He did not request the document to be provided to the witness and had no knowledge that it had in fact been provided to Mr Laing. It bears on it no marking linking it to Dibbs Barker Gosling. 13 Mr Connelly was present at the teleconference and says in his affidavit that it went for approximately 15 to 20 minutes. Mr Connelly said: "5 My recollection of that teleconference is that Geoff dealt with matters relating to the mechanics of the Perisher Blue witnesses travelling to Sydney for the trial, preferred manner of dress, where to meet with us prior to the trial and that individual conferences between each witness and counsel would be conducted once the witnesses were in Sydney." 14 Mr Connelly identified a file note dated 27 June 2003 made by him concerning the teleconference. The body of that file note, which is handwritten, is as follows: "Sharon Jack Teleconference Jai Palmer Darryl Dean Chris Bevan Ken Randall GRB MKC Chris Bevan – "Bollards were not scattered ie. fallen over – they were just bumped around a bit from use on the day. Jai Palmer – no recollection of ever re-opening a ski-school line during his employment. Provide each witness with brief run-downs of evidence Ltr to PB re: - Bevan – describe discussion with Day - Palmer – weren't working - never re-opened ski-line" 15 The affidavit continued: "6 … The file note is not a verbatim file note of the teleconference. I do recall that those participating in the conference were Ken Randall, Sharon Jack, Darryl Dean, Jai Palmer and Chris Bevan at Perisher and Geoff and myself in Sydney. While I was present I do not recall specifically making any comments myself during the course of the teleconference. That said, I may have confirmed, for example, the arrangements made that each witness confer with Mr Robert Montgomery, counsel briefed for Perisher Blue, as I had in fact made those arrangements and the task of organising those individual conference was a responsibility of mine. 7 I have noted that there are matters I have recorded against the names Chris Bevan and Jai Palmer on the file note. I do not recall those witnesses making statements to the effect of the matters recorded in the note nor do I recall the context in which those matters might have been raised. I do not recall any discussion during the teleconference of the contents of the evidence to be given by the witnesses. I do not recall the witnesses going through the statements in the teleconference. I am not presently sure whether the whole of the file note records discussion which took place during the teleconference or whether part of the file note consists of notes which were taken by me after it terminated. 8 In the period 2001 to 2004 I had an understanding (and I still have this understanding) that the rules regarding the conduct of interviews with witnesses required that there be no discussion of the evidence of one witness in front of another witness. During this period I adhered to my understanding of this rule." 16 About this file note Mr Brookes deposed in his affidavit: "13 … I have been asked whether anything in that file-note assists me in my recollection of what happened in the meeting. The file-note does not assist me. If it were the case that something was said by Chris Bevan during the teleconference about the contents of this evidence, I do not remember that. If it were the case that something was said by Jai Palmer during the teleconference about the contents of his evidence, I do not remember that. As stated above, to the best of my recollection, my participation in the teleconference was about the 'procedural matters' I have referred to above and in my recollection, all of the conference was devoted to those 'procedural matters'." 17 Mr Connelly in his affidavit went on to say that he drafted the letter dated 3 July 2003 which he anticipated would be read by Mr Ken Randall to whose attention it was addressed. "I certainly did not anticipate that it would be read by the individual Perisher Blue witnesses." He said: "12 By July 2003 I had participated in a number of individual meetings between Perisher Blue witnesses and counsel in other matters. It was always stressed to Perisher Blue witnesses in those matters that the witness should not discuss his or her evidence in a particular case with any other witness." 18 In his very fair and very comprehensive submissions Mr Bathurst emphasised that, of the oral evidence given at the trial, only Mr Dean in one part of his evidence, said that at the teleconference, "each of the statements was gone through". However, in the passage that Sheller JA has quoted in his judgment he appears to have been confused about the date of the teleconference. Furthermore, what he said seemed to contradict his earlier evidence. However, it might well be open to conclude from the terms of the file note set out beside the names of four of the witnesses that the discussion at the teleconference at which they were present extended to the evidence that they would give and was not limited in the manner suggested by Mr Connelly in his affidavit in paras 6 and 7, most of which was introduced by the words "I do not recall". 19 Mr Bathurst further submitted that the Court should defer any decision to refer this Court's judgment and the appeal papers until after the proceedings between the parties are resolved by a new trial or otherwise. To overcome any consequences of delay the following undertakings to the Court by the two solicitors were proffered: "1. That in the event the Court refers the judgment and the appeal papers to the Legal Services Commissioner, after the proceedings are disposed of by a new trial or otherwise, then he will not seek to take any point that the referral is out of time or otherwise subject to a challenge by reason of the effluxion of time. 2. That in the event the Court refers the judgment and the appeal papers to the Legal Services Commissioner, after the proceedings are disposed of by a new trial or otherwise, then he will notify the Registrar of the Court of Appeal in the event he becomes aware the proceedings have been settled or otherwise disposed of." 20 The proposed reference by the Court to the Legal Services Commissioner is no more than that. The Court is not persuaded that the judgment of 11 April 2005 and this judgment and the appeal papers should not be referred to the Legal Services Commissioner. What follows is a matter for the Legal Services Commissioner in terms of his powers under the Legal Profession Act 1987. It has been pointed out that in any reference the solicitors concerned are Mr Brookes and Mr Connelly. Mr Brookes is a solicitor of over twenty years standing who has been a partner in a well known firm of solicitors for many years. On the other hand, Mr Connelly was admitted in October 2000 and was working on these proceedings as an employee and no doubt under the supervision of Mr Brookes. Bearing this matter in mind, it was submitted that, if there is to be a reference, the reference should relate only to the conduct of Mr Brookes. However, while no doubt the inexperience of Mr Connelly may be a factor in determining the extent and nature of his responsibility for what happened, that is a matter for the Legal Services Commissioner. 21 On further reflexion the Court regards it as preferable that the reference be made forthwith. It will then be a matter for the Legal Services Commissioner, no doubt after reference to any submissions put to him, to determine whether any investigation proceed immediately or await the outcome of a new trial. Orders 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 . ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.