A time to speak?

A recent story in Lawyers’ Weekly has left me wondering how much a judge’s public comments should be restrained after retirement.

According to the story, His Honour Michael Kirby, a retired Justice of the High Court of Australia, spoke at an LGBTIQ book launch.  His comments noted that –

Justice Kirby said Australia should be wary of the draft Religious Freedom Bill, brought to light by Attorney-General Christian Porter, as it was not “drafted by friends”.

“I think we have to watch the Religious Freedom Bill with the greatest of care because that has not been drafted by friends or allies,” Justice Kirby said. “It has been drafted by people that want to go back to the binary division, fixed by penis and vagina.”

It is hard not to be a little troubled by a man of His Honour’s stature stating that a Bill had ‘not been drafted by friends or allies’, because the implication is that it has been drafted by enemies.  It is not clear whom he may have had in mind.  Attorney-General Porter, perhaps?  Parliamentary counsel?  Regardless, it seems to me that a lay person might reasonably wonder how far His Honour’s view of the law might be shared by his successors on the High Court, and what that might mean for any challenge to the law.

A more problematic set of statements appeared at the end of the article, where it was reported that

Justice Kirby said [transsexual people] “… get a very hard time from the Roman Catholic Church”.

“They get that hard time because of the notion of civil law that you have to go back to natural law, and natural law is based on the binary division of human beings with penises and vaginas. And by that standard of nature you are fixed forever and you must fulfil that role,” Justice Kirby said of these attitudes.

“This is the natural law of teaching and that is what the church has said in its latest publication. It is totally opposed to transition surgery and to different bathrooms and other benefits for trans people. The battle at the level of the church is not over.”

The phrasing of a “battle at the level of the [Catholic] church” seems unfortunate when there are reports that Cardinal Pell will seek special leave to appeal to the High Court over his sexual assault convictions.

Retired members of the Bench are potentially a valuable source of wisdom in the public forum, but it seems to me that getting too near the coalface of debate is dangerous.  The risk of calling the Court’s impartiality into question is too great.

The taxman in Portugal

I’m not sure how it happened, but I somehow ended up on the mailing list of Portuguese law firm Caiado Guerreiro.  My firm has a remarkably large Portuguese clientele, so I keep an eye on these emails (courtesy of Google Translate) in order to be able to pass on anything that might be useful.

Caiado

I received one the other day why probably isn’t much use to our clients, but that I found interesting.  It covers the right to silence in tax cases.  Courtesy of Google Translate it reads –

A recent ruling by the Constitutional Court (TC Ruling No. 298/2019 of 15 May) strengthened taxpayers’ guarantees to the Tax Authority.

At issue was the non-delivery of VAT, but what stands out in this case is the defendants’ right to non-self-discrimination. After conviction at first instance for the practice of abuse of fiscal confidence, the defendant appealed to the Court of Appeal which dismissed the appeal. In the context of the appeal, its nullity was argued and some points of the judgment under appeal were clarified.

The argument was based on the principle nemo tenetur se ipsum accusare, the right to silence, namely the provision of information or the delivery of self-discriminatory documents. The Constitutional Court has recognized that this principle is not absolute and may be legally restricted, however, this was not the case. The defendant, during a tax inspection that took place during the investigation of the criminal proceedings, believing that he was obliged by virtue of the duties of tax cooperation before the TA and under penalty of being fined, handed several documents and accounting information to the Tax Authority without the prior knowledge or decision of the competent judicial authority. That is, it was forced to make available information that became an instrument of its own incrimination.

As the court states, a possibility arises for linking procedures (tax inspection and tax criminal proceedings) which are governed by contrary principles, on the one hand the principle of cooperation with the TA and on the other a principle which is reflected in the right to silence.

Faced with the above imperatives, the Constitutional Court ruled unconstitutional, in breach of the nemo tenetur se ipsum accusare principle, under Article 32 (1) of the Constitution of the Portuguese Republic, the normative interpretation of Articles 61 (2) 1 (d), 125 and 126 (2) (a), all of the Code of Criminal Procedure, according to which tax-relevant documents obtained under the duty of cooperation laid down in Article 9 (1) of the Complementary Regime of the Tax and Customs Inspection Procedure and Article 59 (4) of the General Tax Law within the scope of the tax inspection that runs terms concurrently with the investigation phase of a case criminal offense for the commission of a tax offense against the inspected taxpayer may be used as evidence in the same proceeding.

Thus, the TC understands that the documents and information obtained by the TA in the context of a tax inspection cannot be used against the taxpayer who runs concurrent terms.

In the original it reads –

Uma decisão recente do Tribunal Constitucional (Acórdão do TC n.º 298/2019, de 15 de maio) reforçou as garantias dos contribuintes perante a Autoridade Tributária.

Em causa estava a não entrega de IVA, mas o que sobressai deste processo é o direito dos arguidos à não autoincriminação. Após condenação em 1ª instância pela prática de abuso de confiança fiscal, o arguido recorreu para a Relação que julgou o recurso improcedente. No âmbito do recurso foi arguida a sua nulidade e solicitou-se o esclarecimento de alguns pontos do acórdão recorrido.

A argumentação correu em volta do princípio nemo tenetur se ipsum accusare, o direito ao silêncio, nomeadamente a prestação de informações ou a entrega de documentos autoincriminatórios. O Tribunal Constitucional reconheceu que este princípio não é absoluto, podendo ser legalmente restringido, no entanto, este não foi o caso. O arguido, em sede de inspeção tributária que decorreu durante o inquérito do processo-crime, acreditando estar obrigado por força dos deveres de colaboração em matéria tributária perante a AT e sob pena de lhe ser aplicada uma coima, entregou vários documentos e informações contabilísticas à Autoridade Tributária, sem o prévio conhecimento ou decisão da autoridade judiciária competente. Ou seja, foi forçado a disponibilizar informação que se transformou em instrumento da sua própria incriminação.

Como refere o tribunal, emerge uma possibilidade de ligação dos procedimentos (o de inspeção tributária e o processo penal fiscal) que são regidos por princípios de sentidos contrários, por um lado o princípio da cooperação com a AT e por outro um princípio que se reflete no direito ao silêncio.

Confrontados os imperativos supra, o Tribunal Constitucional julgou inconstitucional, por violação do princípio nemo tenetur se ipsum accusare, ínsito no artigo 32.º, n.º1, da Constituição da República Portuguesa, a interpretação normativa dos artigos 61.º, n.º 1, alínea d), 125.º e 126.º, n.º 2, alínea a), todos do Código de Processo Penal, segundo a qual os documentos fiscalmente relevantes obtidos ao abrigo do dever de cooperação previsto no artigo 9.º, n.º 1, do Regime Complementar do Procedimento de Inspeção Tributária e Aduaneira e no artigo 59.º, n.º 4, da Lei Geral Tributária no âmbito de inspeção tributária que corre termos em simultâneo com a fase de inquérito de um processo criminal pela prática de crime fiscal movido contra o contribuinte inspecionado, podem ser utilizados como prova no mesmo processo.

Assim, entende o TC que os documentos e informações obtidos pela AT no âmbito de uma inspeção tributária não podem ser utilizados contra o contribuinte em sede de processo-crime que corra termos em simultâneo.

I find it interesting that a person may indeed be able (in that jurisdiction) to refuse to hand over records on self-incrimination grounds.  At some point I should have a look at whether the IRS or ATO face similar restraints.

Did blame end with death?

An interesting case on liability and causation was recently decided by the Supreme Court of South Carolina.

On 3 February 2011 pharmacist John Wickersham was involved in a road accident while driving a Ford Escape.  The airbag system was defective and enhanced his injuries.  After enduring severe pain for some months, he committed suicide.  His widow sought compensation from the manufacturer of the car  based on his wrongful death.  Ford argued that the deceased’s suicide was an intervening act that could not have been caused by a defective airbag.

white airbag instruction label
Photo by Markus Spiske temporausch.com on Pexels.com

After a number of procedural twists and turns (including removing the case to federal court) a jury awarded the widow $4.65 million, albeit with a discount for Mr Wickersham’s contributory negligence.  Ford appealed to the Fourth Circuit Court of Appeals.  The Court of Appeals then asked the South Carolina Supreme Court to determine whether that State’s law recognised an exception to the principle that suicide will break the chain of causation in wrongful death claims.

The Supreme Court responded that it did not recognise such a principle.  Instead, the ‘traditional’ principles of causation applied: that is, the court must first decide whether the suicide was foreseeable as a matter of law.  That is, was it the “natural and probable” consequence of the defendant’s act or omission?  If so, then the jury must determine whether in the facts of the case the suicide was foreseeable and whether the alleged act  was causative: that is, did it cause the deceased  to suffer an involuntary and irresistible urge to end his life.

Wickersham v Ford Motor Co (So. Carolina, 24 July 2019)

Putting out the Writs

I’m looking over my casebook and I’m struck by how active a week it’s been in terms of starting cases.  I’ve served or filed –

  • One Supreme Court writ
  • Two County Court writs
  • Two County Court originating motions
  • One Magistrates Court complaint

CC Seal

As Robert Maxwell (didn’t) say –

When I’m feeling in a mood

Someone out there will be sued!

 

When Basketball goes Bad

Earlier this year Pope Francis gave an address to the Italian Sports Centre.  His remarks included the observation that “[Sport] is a great school, provided that you live it with self-control and respect for others.”.  Recently the Supreme Court of Utah had to look at what this means in practice.

A basketball match at a meetinghouse of the Church of Jesus Christ of Latter Day Saints turned a bit ugly when one Judd Nixon was tackled by another player, Edward Clay.  The tackle was ruled to be an unintentional common foul, despite which Nixon suffered a serious knee injury.

action backboard ball basketball
Photo by Pixabay on Pexels.com

Nixon brought proceedings seeking damages in the Utah County District Court.  Judge Pullan granted a summary dismissal of the case on the grounds that a participant in a contact sport is liable only for the results of a wilful or reckless disregard for the safety of another player.  Mr Nixon appealed.

The Supreme Court of Utah dismissed the Appeal.  The Court adopted a simpler test which bypassed consideration of the defendant’s state of mind.  It expressed the relevant common law to be –

that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Knight, 834 P.2d at 708. But there is no duty to lower or eliminate risks that are inherent in an activity.

In the circumstances, a grant of summary judgment was appropriate.

Interestingly, the Supreme Court of Utah was essentially the same as that reached by Australian courts in McNamara v Duncan and Smith v Emerson.

Nixon v Clay, 2019 UT 32

Unreasonableness and Regret

An interesting headline popped up in my twitter feed this morning.  The Australian had run an article which noted the possibility of litigation against doctors in cases of gender reassignment regret.

The article states that –

In Australia, troubled clinicians have urged the federal government to set up an urgent inquiry into the safety and ethics of “experimental” hormone drug treatment of girls as young as nine and boys from 11.

They say trans activism has trumped ethics and obscured the weak evidence for this radical treatment, with the dominant ­“affirmation model” pushing children down a medical path that can leave them infertile and incapable of orgasm, among other side-­effects. …

The US is seeing early signs of what ­clinicians believe will be a wave of regretful “detransitioners” across the English-speaking world.

This left me wondering what the legal options would be for a litigant.  The only caselaw on the subject of which I’m aware is Finch v Southern Health [2004] VCC 44; affirmed as Walters v Finch [2005] VSCA 203.  That case, however, dealt only with the time limit for bringing the proceeding.  I can find no decision in it post 2004; presumably the matter resolved.  In any event, since Finch’s Case the Wrongs Act 1958 has been amended to include §59, which relevantly says –

(1) A professional is not negligent … if it is established that the professional acted in a manner that (at the time …) was widely [but not necessarily universally] accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

It occurs to me that subsection (2) may make for some interesting litigation if the ‘wave of regretful “detransitioners”‘ becomes a reality.  It is hard to be unaware of the fraught nature of public discussion surrounding transgender issues.  The danger of being caught in a social media wildfire is unacceptably high for many serious and reasonable research institutions.  If this public pressure were to result in a substantial skewing of research, a court may well be asked to determine that the relevant professional opinion is unreasonable.

Who owned the elephant?

Bart Simpson famously asked “where’s my elephant?”

He wasn’t the first.

In 1914 or 1915 Mr Maung Dwe of Burma captured an elephant and trained it to work. About six months later he sold it to Mr Maung Sin, for whom it worked until 6 June 1917 when it became lost in the jungle. The creature appears to have joined with a herd of wild elephants. In June 1918 it was recaptured by Mr Maung Shwe. He found it was able to be put to work very soon thereafter. Sin sued successfully for recovery of the elephant. The defendant appealed to the Lower Burma Chief Court.

Elephant at work - Rangoon, Burma
Elephants at work, Rangoon (c.1907) [Image from here]
Higinbotham J took his bearings from Halsbury’s Laws of England, vol.1 ¶¶798799. According to Halsbury a person can have only “qualified” property in a wild animal.  If a wild animal escapes to its former liberty, the ownership is lost.  He continued –

Elephants are animals which, though by nature wild, are peculiarly amenable to training and quickly become tame. If any such tame and trained ani­mal should go off with a wild herd of other elephants and remain at liberty so long that when recaptured, it had to be dealt with and trained as if it were a wild animal, which had never before been tamed and trained, I think it would be correct to say that it had reverted to its natural state and was in fact a wild animal.  In such case, the former owner would have lost all property to it.  But if on recapture it was found to be tame and could be put to work again almost at once, I think it would be incorrect to say that it was a wild animal.

In this case the recaptured elephant had been returned to work in a very short time and appeared trained.  It followed that it was not a wild animal when recaptured and so Sin remained the owner.

Shwe v Sin, AIR 1921 Lower Burma 1

Angry mob next 10 miles

Road hazards come in all shapes and sizes.  Sometimes they take the form of an angry mob.

On 24 December 1972 Peter Moini was a passenger in a motor vehicle owned by the government of Papua New Guinea (PNG).  The vehicle was driven by a government employee, Luke Rovin.  On the Highlands Highway near the town of Goroka, Rovin’s driving caused the vehicle to hit and kill a child nameds Linda Sapulo.  The vehicle ran off the road and turned over.  In the ensuing riot the people of the area murdered Rovin and Moini in a “payback kiling”.  Moini’s widow successfully sought damages from the government in the PNG National Court on the grounds that Rovin’s negligence had caused her husband’s death: Moini v The State [1977] PNGLR 39.  The government appealed.

Goroka (1973)
Countryside near Goroka, Papua New Guinea, in 1973 [NAA: B6295, 3511Q]
Among the grounds of appeal presented to the Supreme Court of PNG was that there was no evidence that Moini’s death was foreseeable.  The Court rejected this argument.  Prentice CJ strikingly observed that –

In many parts of Papua New Guinea the payback is becoming a thing of the past. But it is indeed a matter of notoriety that inspires dismay, that some 40 years of government administration in the Highlands, including criminal sanctions, insurance, and special provisions for automatic compensation to tribal non-dependent relatives, have not yet removed among Highlanders the instant reaction towards payback for tribal loss of blood or death. … It must be known to all driving members of the community that even in Port Moresby, as a matter of prudence, one does not stop after a motor vehicle accident … but proceeds straight to the nearest police station — in some districts even to seek sanctuary for oneself against payback, despite completely blameless behaviour.

As a result, “a reasonable man in Rovin’s position would reasonably have foreseen the killing of Moini and/or himself as the likely consequence of his killing of the child and overturning of his vehicle”.

The State v Moini [1978] PNGLR 184

What was the worker doing?

British India was always an odd blend of compassion and ruthlessness.  By the 1920s, the Raj had enacted workers’ compensation laws for the subcontinent.  It then proceeded to enforce them fairly ruthlessly.

In about 1936 Mr Maung Ba Aye was employed by the Bombay Burmah Trading Corporation as an elephant handler.  On the day in question, however, he had been asked to hand-deliver a letter between two company officials.  On his way back he was attacked by a bear, suffering fatal injuries.  The Commissioner for Workmen’s Compensation ordered that compensation be paid to the deceased’s mother.  The Company appealed to the High Court of Burma, stating that the deceased was not a worker at the relevant time.

Elephant at work - Rangoon
Elephant working in Rangoon, 1907 (Image from here)

The Workmen’s Compensation Act 1923 (Br. Ind.) relevantly defined a workman at 2(1)(n) as

… any person … who is –…

(ii) employed in any such capacity as is specified in Schedule II [which included employment”in the training, keeping or working of elephants or wild animals”] …;

Roberts CJ considered that the Act was a “quasi-penal statute” and so it should be read strictly rather than leniently.  As a result –

it is clear that at the time that the deceased was being sent out on a message to Mr. Barlow he was not employed in the task of training, keeping or working of elephants or wild animals. He was a person who was normally employed in that capacity, but was being given other duties to perform on that particular day. … [B]eing obliged to administer the Act as it stands,we are constrained to say that the deceased was not a workman within the meaning of the Act for the  pur­poses of this appeal.

A similar line of reasoning was followed by Dunkley J.  As a result the employer could not be ordered to pay compensation in relation to the death.

Bombay Burmah Trading Corp’n Ltd v Ma E Nun, AIR 1937 Rang 45

Managing stress in litigation

The most relentless buzzword in legal practice seems to be “wellness”.  Jeena Cho writes an interesting column on the subject for the ABA Journal.  Stress management is the source of quite a large number of articlesLawyers Weekly recently ran a story with guidelines on establishing resilience covering –

1. Engage with family and friends. Take the time to maintain healthy and emotionally stimulating relationships outside of work and explore ways to connect with people in meaningful ways. For example, go for a nice walk after work or eat a meal with friends or family as often as possible.
2. Get into a structured sleep habit. Aim for seven to eight hours a night and wake up at the same time every morning (even on the weekend). ….
3. Divide your day into segments. Allocate time for certain work tasks, time to move your body and time for mental breaks.
4. Find a way to be active every day. …. Just 30 minutes a day can work wonders for your brain and increase your resilience long-term.
5. When in doubt, breathe out. ….

This sounds great, although it’s impractical when your workday looks like this –

lawyer overwork

Anyway, this left me wondering what I recommend in the way of stress management based on a career which has not been uneventful.

Don’t Panic

This is a biggy.  One of the sagest bits of advice I ever received was from my friend Pam, who in turn got it from a veteran CFA Captain:

When you turn up at a bushfire,  the first thing you should do when you get out of the truck is lean on the bullbar and have a cigarette.

It makes sense, right?  The five minutes you take for a cancer-stick won’t make much of a difference and you’ll calm yourself down, appraise the situation and react to it calmly.  In the world of law this translates to: your opponent’s sent you an email refusing to agree to a vital adjournment?  Go and make a cup of tea, then come back and look at how you’ll respond to the unco-operative bastard.

You Can Fix It

It’s easy to forget, but just about every misstep in litigation can be fixed.  The only ones that can’t be repaired are missing a statute-of-limitations date or (in my jurisdiction) missing a step in the workers compensation serious injury/common law field.  Virtually every other glitch can be fixed.  It may be expensive and embarrassing but it can be fixed.

Speak Without Thinking

This one is counter-intuitive.  Let me explain.  You can never show weakness or indecision and so your first response to a challenge must be to return fire.  So, if you’re on the phone to your opponent and they’re telling you how rubbish your case is, you should have a stock set of phrases to commence any reply. First, hearing your own voice say something tends to persuade you it’s true.  Second, the brain has a remarkable ability to come up with something that will back up you initial statement.  Some of my usual phrases are –

Well, I’m afraid I don’t see it that way.

I can’t imagine a jury will agree with you.

I must say, that’s not my understanding of the law.

I don’t think that position is sound.

That’s a curious line of argument.

Well, if the defendant wants to take that position, that’s a matter for you.

If all else fails, you can finish with “It’ll be interesting to see what the Court makes of it”.

Have a Rag Bag

Litigators should have an intellectual rag bag they can rummage through for ideas.  The only way to acquire this valuable resource is utterly chaotic reading about the law.  Read decisions from random jurisdictions, like the All India Reporter – Rangoon or the Supreme Court of Latvia.  Flip through any lawyers’ magazine or law journal that crosses your path.

All India Reporter
Image from here

It’s astonishing you can use an intellectual tool you gather from them.  In no time at all you’ll feel like you can deal with any problem that the law throws your way.

Prepare a Strategy

If service with SES has taught me anything, it’s how to prepare a SMEACS briefing.  These briefings are an ideal way to organise your thoughts and plan your way to a win.  They’re incredibly helpful if you’re worried about a file and you can pick it it up and see exactly what you planned to do next.  The acronym stands for

S = Situation: What are the client’s injuries? When was the accident? What is standing in the way of them getting some money?

M = Mission: What are you trying to achieve?  Do you want to bring the matter on as a priority?  DO you want to win (one assumes so)? Do you need to extend time?

E = Execution: What precise steps need to be accomplished to get you to that point?  What medical reports are needed, and who from?  Do you need a site inspection?  Should counsel be booked?  This will usually be the longest piece of the note.

A = Administration: Are there interlocutory deadlines to be met?  Do you need to allocate particular jobs to someone else (for example, preparing a Court Book?).

C = Communications: Do you need to update your boss?  Are you dealing with your opponent’s Sydney office rather than their Melbourne office?  Do you need to include a notice under the Service and Execution of Process Act 1992 because you’re suing an interstate defendant?

S = Safety: What is going to trip you up?  Does the client need a Tigrinya interpreter for their medical examinations?  Are they volatile and inclined to pick fights with doctors?  Do you have a looming limitations date?

Preparing one of these briefings can take anything from 45 minutes to a couple of hours but (and trust me on this) it will save you a mind-boggling amount of time in the long run.

So there you have it: my two-cents worth on the subject of stress management for litigators.  What tactics do you recommend?