IN AUSTRALIA !
1. Introduction
4. The Appeal to The Full Court of the Supreme Court of Western Australia
5. The Brief “Bottom Line” Facts of the Full Court Judgement
6. The Facts as to How The Full Court Judgement created a “Set-up” against Syd
(a)
The Law of precedent changed
(b)
The
Laws of Precedent of Humanity Abused
(c)
The
abuses of its own Process, and/or, abuses of the Full Court’s own Jurisdiction
9. The Forseeable, and/or, Natural Consequences, and/or Reprisals
(a) Taxation Consequences
(b)
Wrongfully charged by the Police
(c)
Wrongful criminal conviction by the Police
(d)
Falsely imprisoned
(e)
Other examples
10. Some of the Un-workableness of the Legal System
(a) Solicitors Officers of The Court, and
the Courts, and/or, The Judiciary Not to be
Brought Into
Disrepute
(b) The Law Society
(c) Solicitor/client
contracts
(d) Solicitors Bill of Costs pursuant to the South Australian
Supreme Court Rules
11. Summary
Written by Sydney and Deanne Plenty
This article has been written from the lay person’s stand point, not
from the legal profession’s stand point, it is an article for both the public,
our politicians, and the powers that be, for the
public to be made aware of the un-workableness of our legal system in
Australia, and for our politicians and powers that be, to be put on notice that
there is a desperate need for some urgent changes in our legal system.
Public Policy is a word
that is frequently used in the legal system, but in our experience there are a
lot of things in the legal system that have nothing whatsoever to do with what
the public itself would say is public policy.
For instance, the public in general would believe that the charter of
the legal system is to do justice by all manner of persons, meaning that the
legal system is there as the “watch dogs” over individuals natural rights,
and/or, civil rights, truth and natural justice etc., including their natural
rights to life, liberty, property, and happiness, and to see that the
individual is not denied these fundamentals of a right thinking society.
But as you will see in the
following pages, from our own personal experience in the legal system of some
significant 33 years standing, which originated from being innocent victims of
a car accident, we tell you about some specific areas within that system that
makes it un-workable, and that should be of public concern.
In that 33 years we have worked
within the legal system both with solicitors and barristers, and as personal
litigants, and as such we believe we have earned the right, with our own
“blood, sweat, and tears etc,” to speak out publicly about the un-workableness we have experienced
and found in the legal system, which, in our view, should be a valuable
contribution for the legal system, politicians etc., to take heed, from the
public viewpoint.
We do not
accuse every person within the legal system of impropriety, we believe the
legal system is no different to any other walk of life, it is made up of the
“good, bad and indifferent”, but because of this, there is a definite need for
law reform within the Australian Legal System, to where democracy, and natural
justice demands that there be a right to make complaints to an independent,
impartial body in regard to matters that are of public concern; otherwise, the
situation is only one of Caesar judging Caesar, instead of the well known, and
longstanding, undertaking, and/or, contract to the public, given by the Courts
themselves as per Lord Hewart C.J., in 1923, in the case of R. v. Sussex
Justices when he said, and we quote:-
“…a long line of cases show that
it is not merely of some importance but it is of fundamental importance that
Justice should not only be done, but should manifestly and undoubtedly be seen
to be done.” [1]
In 1968, in
good faith that we would be treated humanely, and be given natural rights and
justice we innocently, without any previous knowledge or experience with the
legal system, entered into the Australian legal system to make our claim for the injuries we had suffered as a result of
being innocent victims of a car accident on June 7, 1968.
In January 1953, Syd was
conscripted under the Australian National Service Act 1951, to do his National
Service in the military forces in order to be ready to defend his country, of
which, automatically put his life at risk, if and when he was required to do so.
We had been married in 1959 at
Port Pirie in South Australia, 3 weeks later we moved to Albany in Western
Australia, where, as well as raising 3 children, we cleared, developed, and
pioneered 1,520 acres of virgin scrub land into a highly successful sheep and
cattle grazing property, we did this with very little recourses, with very
little machinery, and by sheer hard physical work, and sacrifice, to where we
lived in a caravan for the first seven years without electricity or modern
conveniences. Our success was featured in the old “PIX” Magazine on April 8,
1967 under a series of “Go-West-Young-Man-State”. In May 1968 we branched out
and purchased a further 2,400 acres at Lake Grace in Western Australia.
It was only a few weeks later on
June 7, 1968 when we were both injured in the car accident, Deanne in her mouth
and teeth, and Syd in his right knee and back, at the time of the accident Syd
was an extremely fit and able person. Deanne’s injuries were attended to
immediately, with ongoing treatment needed on her teeth. Syd was admitted to
the Albany Hospital straightaway.
100% liability was admitted by the
compulsory government, Motor Vehicle Third Party Insurance Trust of Western
Australia, (M.V.I.T.), which left only a question of the quantum of damages to
be resolved.
Syd was medically advised by a
specialist surgeon, who was practicing at Albany, to have the whole of his
right kneecap removed, he accepted that advice and signed a consent form to
allow the surgeon to perform unrestricted surgery on his right knee, including
the removal of the whole of the kneecap, Syd also advised the surgeon that he
was a farmer and stockman, and to work the stock, he naturally had to have two
stable legs and two sound knees.
The surgery was carried out the
day after the accident at the Albany Hospital, however, unbeknown to Syd at the
time, the surgeon removed part only of the kneecap.
At a later date, the surgeon
provided to the M.V.I.T., a written report that he anticipated a 100% recovery,
with only a question of time.
Some months later, after the
plaster had been removed, and the rehabilitation period, the quadriceps muscles
of Syd’s right leg had collapsed, and Syd was suffering from painful clicking
and swelling of the knee joint which became aggravated by movement.
Upon attendance to the Albany
surgeon about this problem, he incredibly attacked Syd of being pessimistic and
attributed this to his lack of recovery, and he put this in a report, which
went to a Perth surgeon, (to whom he referred Syd), and to the M.V.I.T.
The Perth surgeon could offer no
solution or improvement to Syd’s knee, other than, exploratory surgery, which,
at that time, meant major surgery akin to the surgery he had already had, and
the consequences arising from that, however he was also told that this could
not take place without the quadriceps muscles being built up to pre-accident
condition, and emphasized that there was a strong possibility of there being a
necessity to stiffen the knee.
So after being given no assurance
from his doctors that any further surgery or treatment would improve his
disabilities to his farm and stock work for even a short time, and with the
risks involved of the knee having to be stiffened, and finding that he couldn’t
possibly work his stock and run the farm without two good knees, Syd said NO to having this exploratory
surgery. At the same time, Syd also had significant complications from his back
injury.
As a result of his medical
position, Syd was incapacitated in carrying out his farming activities, and was
eventually forced to relinquish his farming and grazing occupation, and since
then he has had no gainful employment, or social services.
With only a contemptuous offer of
compensation coming from the M.V.I.T., Syd was forced to make a claim for his damages in the Court.
As he was covered by a compulsory
Government Motor Vehicle Third Party Insurance Act, Syd
believed that he would be treated justly,
fairly and above all, humanely and be properly compensated in accordance
with the law and his Statute Rights.
Syd was represented by a well
established Perth Firm of solicitors, and a recommended QC., who was considered
to be one of the most eminent Barristers in Western Australia at that time.
The Trial began on the 16th
and 17th December, 1971, and at that time was part heard by a Judge,
and two assessors in the Third Party Claims Tribunal, then incredibly, it did
not return for the rest of the trial to be heard until July 13, and 14th
of 1972, but this time in a different Court, the District Court, and with the
Judge only. We learned later that the original Tribunal had been abandoned only
one week prior to July 13, 1972.
Syd’s evidence included being
thoroughly examined and cross-examined in regard to his reasons and his
decision to say NO to the further surgery, which was exploratory
surgery.
The Trial Judge delivered his
Judgement on the 28th July 1972, however, without any proof or
evidence whatsoever, he incredibly found Syd, (who was the plaintiff in the
action), to have been unreasonable in refusing to undergo the exploratory
surgery, as he believed that some further surgery would cure Syd for a certain
period of time, and further, that ultimately there would be difficulties again
by reason of arthritis and to alleviate this would involve Syd having an
arthrodesis at some time in the future resulting in a stiff leg, to which Syd
would have to bear the consequences of that, and further, he gave Syd no compensation whatsoever for
his pain, incapacity or economic loss, instead, he awarded Syd, inter alia :-
Upon his
instructions, with the expectation that the higher Court would be just, and
adjudicate his claim according to law and justice, Syd’s solicitors appealed to
the Full Court of the Supreme Court of Western Australia, (which is comprised
of 3 Supreme Court Judges), the basic grounds of the appeal were, as stated in
the Full Court Judgement, and we quote:
“By his ground of appeal
as amended the appellant says in general terms that the sum awarded was so low
as to be “a wholly erroneous estimate of the damages suffered” and more
specifically contends that in judging the question whether the appellant in
refusing to submit to further surgical treatment had acted unreasonably (a
question which was answered in the affirmative) the learned trial Judge had
failed to appreciate that the onus of proof as to that question rested upon the
respondent, and further, that the learned trial Judge had misunderstood the
effect of the medical evidence, leading him to conclude that had further
surgery been carried out, then certainly and for a significant period of time,
the appellant would not have suffered any incapacity causing him economic
loss.” [2]
The Notice of Appeal also asked for the Appeal Court to
substitute the assessment of the damage.
The Full
Court’s Judgement on Syd’s appeal was delivered on June 22, 1973. [2],
Firstly, the Full
Court had all of the evidence before them at the Appeal, and they recorded in
their Judgement that Syd had “declined to undergo the exploratory surgery.”
And that “In substance, it was said that he had suffered a total and permanent
loss of capacity to work as a farmer.”
1.
On one hand, the Full Court allowed
the appeal on the grounds quoted from the Full Court Judgement above, and in
effect said that the Trial Judge was wrong in believing that the further
surgery would cure Syd for any period of time at all, and said, quote, “nowhere in the evidence could I (they) find the
opinion expressed that the advised operation would for a significant or indeed
any period of time certainly cure the appellant’s (Syd’s) condition.”
And
that the Trial Judge had therefore assessed the damages on a wrong basis, and
neither was there any evidence of unreasonableness on Syd’s part.
2.
On the other hand, the Full Court
did not make any substitute judgement upon Syd’s damages, and the full extent
of their judgement came down to the following open ended statement at the
conclusion of the judgement, and we quote,
“In my (our) opinion, if the
appellant (Syd) so moves, the judgement should be set aside, and there should
be a retrial,..”
On the surface of
this, without taking all of the situation into account, you might say what is
wrong with that, you won your appeal and got a retrial.
But after taking
all of the facts and law into account, we will show you that this “so-called
judgement”, is no less than a mischievous, treacherous, and neatest piece of
trickery and sleight of hand by three Supreme Court Judges
you could ever find, and when they should have known exactly what they were
doing to Syd.
We will show you
how they have in fact, “set up” Syd in an absolute “no win” situation which
has totally left him in a void ever since, and just how all of this, to say the
very least, constitutes an abuse of process, and/or, and abuse of their
own jurisdiction, and/or, an abuse of the laws of precedent and Statutes by the
Full Court itself, which has defeated and perverted the course of justice.
1.
In regard to point 1. of the “Bottom Line”
facts above, Syd in fact won this part of his appeal on
the
existing laws and precedents that applied to his
case at the time of the trial and Judgement in 1971 and 1972.
2. However,
in regard to point 2., of the “Bottom Line” above, the facts that relate to
this point, in fact make the first point of winning the appeal nugatory,
and/or, contradictory, this is because:
[1]
there was no substitute judgement given on the assessment of damages,
and
[2] in order for Syd to have any chance at all of having his
damages assessed, he would have to apply for
the retrial, and in
applying for that retrial, and incumbent in his QC’s written advice was, and we
quote :
“In my view if the retrial
takes place without the exploratory operation having been performed then there
is a real
possibility that the
ultimate award could be less than the sum awarded by Pidgeon J.(the Trial
Judge)” and
“Of course the
appellant (Syd) does not have to move for a retrial. However, if he does not
then the Judgement
would stand and he would
not only lose his costs of the appeal but he would probably be ordered to pay
the
defendant’s costs of the
appeal. Therefore, it seems to be imperative that the appellant does
move as the Court
suggests in the last
paragraph of the judgement.” (emphasis
ours)
In other words,
irrespective of the fact that Syd had already said NO to any
further exploratory surgery,
there is now an
untenable, inhumanity now placed upon Syd, in that:
(1)
the retrial has been made obligatory, or
mandatory for Syd to have any chance of having his
damages assessed,
(2)
incumbent in the retrial, is that the
further exploratory surgery has also been made obligatory,
or mandatory, and
(3) further,
that if Syd was to have the retrial without having the exploratory operation,
there was a real
possibility that the award given by the Trial Judge could be
lessened.
In order to be
able to make this decision, the Full Court Judges, by their own admission,
incredibly departed from the recognized
principles of the settled common law precedents on standards of proof in cases
where a claimant like Syd, is accused of not mitigating his damages, and that
standard of proof coming from the precedent of Buczynski v. McDonald, [3], and we
quote :-
“The authorities show that once the plaintiff has ‘made out a prima facie case of damages, actual or prospective, to a given amount’, the burden lies upon the defendant to prove circumstances whereby the loss could have been diminished. Not only must the defendant discharge the onus of showing that the plaintiff could have mitigated his loss if he had reacted reasonably, but he must also show how and to what extent that loss could have been minimized.”
The Full Court said of this authority, that, “with great
respect” they are “unable to agree with it” [4].
In disagreeing,
and/or, departing from this precedent of law, it meant that the Full Court had
now shifted the balance of the onus of proof from off the defendant, and
on to Syd.
At trial, the onus
of proof was upon the defendant to prove how and to what extent Syd was
unreasonable in not submitting himself to having that unnecessary, exploratory
operation. With this Full Court
Judgement, that onus of proof had been shifted to Syd, and set him up in an
untenable position, to now prove, in the negative, that he had not been
unreasonable in refusing to have that operation, and further, to prove that he
could not improve the disability of the injury to his knee, before he could
have any chance at all of getting his damages assessed,
This was in total disregard to Syd’s NO,
to such surgery, and irrespective of the fact that no human being can prove, or
discharge a negative situation, which this had now become.
(a) The Law of Precedent Changed.
It is a well known fact, at least
within the legal system, that the foundation of the legal system is built on common
law precedents of law, which have been made by previous judges, and the
position of precedents is this :-
[1] one definition of precedents is, [5] quote
:-
“A judgement or decision of a court of law cited as an
authority for deciding a similar set of facts; a case which serves as
an authority for a legal
principle embodied in its decision. The common law has developed by broadening
down from
precedent to precedent.”
[2] The oath of Judges of the High Court of
Australia, which also applies to State Courts is, quote :-
“I, , do swear that I will bear true
allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and
Successors according to law, that I
will well and truly serve Her in the Office of Chief Justice [or Justice] of
the High Court
of Australia and that I will do
right to all manner of people according to law” without fear or favour,
affection or ill-will.
So help me God.” [6] (emphasis
ours).
[3] Justice according to law [7] leaves no doubt as to how strongly
the precedent law
should
be followed by the Judiciary :-
“So when in 1401 the
defendant was about to be held liable for the escape of his fire, his counsel
argued that he would be
“undone and impoverished all his
days if this action is to be maintained against him; for then twenty other such
suits will
be brought against him,” but met
with the reply: “What is that to
us? It is better that he should be
utterly undone than
that the law should be changed for him.” The same answer would be given
today. So it is not open to a modern
judge to create a new remedy,
and accordingly a new right, simply on the grounds of economy or convenience.
Sympathy for a morally meritorious plaintiff
is sometimes judicially expressed, especially when he is a workman injured
in
the course of his employment. On the other
hand, a court should try not to be influenced against the plaintiff by the fact
that he is a disagreeable person standing on
his legal rights.” (emphasis ours)
[4] In 1966 Lord
Gardiner L.C., in the House of Lords made a Practice Statement [8] which
as follows :-
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its
application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the
conduct of their affairs, as well as a basis for orderly development of legal rules.”
In view
of the above quotes, when the Full Court heard Syd’s appeal in 1973, their
jurisdiction, and/or, process, included, looking at the facts, and being bound
by, and limited to, the rules of precedents of law, as it stood at the time of
his trial on December 16, and 17, 1971, and July 13, and 14, 1972, and to Syd’s
Appeal Notice against the Trial Judge’s Judgement of July 28, 1972, to which
they could only dismiss or uphold, and in fact Syd won that appeal on the existing laws of precedent at that time, on
the points referred to in the quote from the Full Court Judgement at Heading 4.
So when the Full
Court went against Buczynski v. McDonald [3], they also went contrary to the above
rules from their own Judicial Oath, Justice according to law, and the
House of Lords Practice Statement, and
made a new, precedent of their own for Syd’s case in regard to mitigation, which is totally illegal in every
sense of the word, because as an Appeal Court the Full Court didn’t have the
jurisdiction to make this new law and then make it retrospective or binding
upon the trial before the Trial Judge, they could only apply existing law at
the time.
However, to
facilitate their new precedent of law for Syd, the Full Court set
up a future time frame, to be able to have it validated, and to do
this, they postdated the trial, and shifted it to a retrial at a future
date, of which, if and when Syd moved the Court to have the retrial, the
new law would have become valid, and binding upon Syd, and also on the Retrial
Judge, and Syd would have also waived his rights to say no to the
unnecessary exploratory surgery, and as such, reverse his no, making him appear
that he was unreasonable in any event to have said no in the first place;
justice and the law can know no such reasoning.
(b)
The Laws of Precedent of Humanity Abused
The clear common
law precedents of law that support Syd’s right to say NO to this
unnecessary exploratory surgery, that were available at the time the Full Court
heard Syd’s appeal, included the following principles :-
From the unanimous decision of 5
Judges of the Supreme Court of Mississippi in Walker v.
International Paper Co. [9], from
which there is a clear precedent as follows :-
“Where an operation is of a major character,
involves serious suffering or danger, or is of doubtful success, injured
employee’s refusal to submit to such operation is not “unreasonable” and right
to compensation is not precluded by such refusal.” And
“The burden of proving that a tendered operation is
simple and safe and will probably effect a cure or a substantial
improvement, thereby making refusal of such surgery unreasonable
and precluding right to continued compensation,
is upon employer.” (emphasis
ours)
Further to the
above common law precedent, when Australia became a signatory to the International
Declaration Of Human Rights, our legislators put those rights into the Human
Rights Commission Act 1981 and the following Article [10], from
that Act, completely turns what the Full Court has done to Syd into an inhumane
compelling situation, totally contrary to his human rights:-
“No one shall be
subjected to torture or to cruel, inhumane or degrading treatment or
punishment. In particular, no
one
shall be subjected without his free consent to medical or scientific
experimentation.”
(c)
The abuses of its own Process, and/or, abuses of the Full Court’s own
Jurisdiction
There is another
serious defect coming from the Full
Court’s Judgement, which is either an abuse of its own process, or of its own
jurisdiction, and which, is in concern with the Western Australian Supreme Court Rules and Act, and the
way in which the Full Court have abused the process of those Rules and Act.
·
The relevant Rules of the Supreme Court of Western Australia
at the time, [11],
are quite clearly mandatory, which meant that the Full Court were bound to
only give relief to the claims properly put before them in a Notice of Motion.
Syd’s Notice of Motion never asked for a retrial, but asked for a substitute
judgement.
The following quote is the relevant Rule,
with emphasis ours:
·
Order 63 Rule 2(2):
“The
appellant may, by notice of motion, appeal from the whole or any part of any
judgement or order, and the notice of motion must state whether the
whole or part only of such judgement or order is complained of, and in the
latter case must specify such part. It must also state briefly,
but specifically, the grounds relied upon in support of the appeal, and what
judgement the appellant seeks in lieu of that appealed from.”
It is to be noted from the Acts
Interpretation Act, that the words must and shall, make a Rule or an
Act, mandatory in its application, and, Syd never made any application
for a retrial, in his Notice of Appeal, to which the Full Court were bound by.
·
Further, The legislators also made very clear provisions in
the Supreme Court Act, that squarely put the responsibility on the Court
to completely and finally determine all matters of controversy between parties
and that all multiplicity of legal proceedings of any such matters be avoided, [12],
and we quote section 24(7):-
“The Court, in the exercise of the jurisdiction vested in it by this Act, in every cause or matter pending before it,
shall have power to grant, either absolutely or on such reasonable terms and conditions as shall seem just, all
such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every
legal or equitable claim properly brought forward by them in such cause or matter; so that, as far as possible, all
matters so in controversy between the parties may be completely and finally determined, and all multiplicity of
legal proceedings concerning any of such matters avoided.”
· In Syd’s case, the Full Court have not “done right to all manner of people according to law ”, have not
“completely
and finally determined” Syd’s case in accordance with their own rules and Act, and as such
have abused the
process of their own Court, which has created “multiplicity of legal proceedings” which
was their charter to avoid.
·
Furthermore, in the English case of Ashmore v. British Coal
Corp [13], 3 Appeal Court Judges held
that, and we
quote :
“In particular, abuse of process was not
limited to sham claims and those that were not honest or bona fide;
instead, having regard to public policy and
the interests of justice, it would be an abuse of process to seek to
relitigate the same issue in the absence of
such fresh evidence as would entirely change the aspect of the case.”
Syd’s clear evidence was that he had said NO to any
further surgery, the Full Court knew that, but had overridden that decision,
AND without Syd changing his mind there was never going to be any “fresh” evidence, and it was therefore,
never open to a retrial, a retrial would clearly be an abuse of process.
As Syd’s QC’s
written advice was silent as to any other legal option that was available to him,
and the fact that we were in Queensland when the Full Court Judgement was
delivered, Syd wrote to his solicitors and asked for further advice as to what
his rights were in regard to the onus of proof etc. However, their replies failed to give such advice and made it
unreasonable to him as to how he would be able to get such advice, and further,
their correspondence kept demanding that he give them a yes, or a no
instruction as to whether he would pursue the retrial or not, or otherwise,
they would cease to act for him, all of which made Syd feel that his solicitors
had put him under duress and undue influence, and overbearing to him, resulting
in him feeling totally betrayed, threatened, and insecure, in not knowing what
his rights were, and therefore, what instruction he could give his solicitors.
Subsequently, because of this
untenable position of where he couldn’t give an instruction to his solicitors,
Syd’s solicitors ceased to act for him, leaving him to “battle his own canoe”.
In other words, every semblance of Syd’s rights had been removed to where he
couldn’t even retain his solicitors because he couldn’t give an instruction.
On May 10,1974 the M.V.I.T., filed
an application in the Western Australian Supreme Court, asking the Court to
strike Syd’s claim out of the Court for want of prosecution, the Full Court
Court decided not to strike the action out, and adjourned it sine die,
(without day) INDEFINITELY.
The end
result of all this is, that after Syd having been
prepared to risk his life for his country at a very early age under compulsion
of conscription, and then after both of us having been hard working,
enterprising citizens, who in good faith trusted in the legal system to do Syd
justice, under the Government compulsory third party motor vehicle insurance
followed out our rights at law, and put our rightful case to the Courts,
through no fault of his own, Syd finished up outside of the Court, with no
solicitors, with a “no win”, “backdoor”, “sleight of hand” judgement,
that on one hand he succeeded in, yet on the other hand, being damned if he did
and damned if he didn’t move for a retrial.
It was a
traumatic enough imposition to have to go through a trial at all, let alone under
the circumstances of being an injured person, but it was a far greater
imposition to then even have to appeal against what the Trial Judge had done,
and then be effectively left as chronic victims of Judicial oppression and tyranny from the Bench, with the
cruel inheritance of being persecuted by the imprisonment and void the legal
system has left us in for the last 28 years, with no finality or resolution, without
any compensation for Syd’s pain, incapacity and economic loss, and not one cent
in any welfare from the government.
The legal reality of this position, is the
unlawful, inhumane compulsion it places Syd under if he chose to accept
the Full Court’s changing of the law, in that he is compelled to :-
[1] firstly, accept the new
precedent of law the Full Court had made,
[2] secondly, he is compelled
to move for a retrial himself, in the full knowledge that he,
would have to submit himself like a “human guinea pig”
to that inhumane, unnecessary,
major, exploratory operation, irrespective of the
facts that :-
·
all the evidence had been given to the
Trial Judge, which was all before the Full Court on appeal,
·
it was then 5 years after the accident and
the surgery that Syd had already had,
·
the evidence that in that time arthritis
had set in to the knee injury,
·
the facts and reasons as to Syd saying NO
to the further exploratory surgery, and
·
what harmful effects this exploratory
surgery could have on Syd’s condition etc.
[3] thirdly, he would have had
the impossibility of proving a negative situation.
So through no
fault of his own, as an innocent victim of a car accident covered by compulsory
Government insurance:
·
Syd’s
Civil, and/or, natural right, and/or, human right to say no to unnecessary, unproductive,
exploratory surgery had been violated, even though he had said this in his
evidence at trial.
·
The
Full Court of Western Australia “set up” a draconian, unlawful, new law for
Syd, in hindsight of the trial evidence, and to Syd’s detriment, postdated the
Trial to the future to facilitate the new law being validated.
·
His
human rights had been totally and illegally, violated to where in order to have
even a remote chance of having his damages assessed, the Full Court had compelled
him to undergo some unnecessary mad operation, which was not for the purpose of
improving the condition of Syd’s knee so that he could go back to his farming
activities, or even for his general well-being, but was for the sole purpose of
evidence being able to be given to the Court, as to what was inside of Syd’s
knee, all of which is totally in conflict with recognized principles of the law
and of human rights.
·
As
a consequence, Syd has never received a substitute judgement as he had applied
for, nor any compensation for his pain, incapacity or economic loss.
·
This so-called Judgement has left us
imprisoned in the legal system without remedy and, an untenable disgrace on
public policy and, an atrocious precedent of common law for other Judges to use
on other unsuspecting litigants seeking their rights.
Herein lies the problem that has
uncovered an un-workable legal system, (to which we give examples of
later in this document), because when the Court itself has abused its own process,
and defeated and perverted its own charter, “the proper course of justice”,
with the only thing we have had left is to try to resolve these abuses by the
Full Court, but how do you ever get the legal system to move against itself
within itself? But before coming to
that, with all of these issues confronting us to resolve, there were
foreseeable, and/or, natural consequences, and/or, reprisals that arose.
The natural consequences that come
out of this whole situation, when the Full Court did not comply with section
24(7) of the Western Australian Supreme Court Act, [12] and failed to completely and finally determine Syd’s rightful claim so as
not to create multiplicity of actions; was, that it placed us in the
most untenable position of being compelled to resolve that Judgement, in
which, over the last 33 years, we have, amongst other things:
(a) Taxation consequences
One example of these natural
consequences, which is central to the abuse of process, and/or, its
jurisdiction, and/or, the law, by the Full Court of Western Australia, is, that
as a result of the unresolved judgement, our business affairs were, and still
are, put into direct conflict with the Australian Taxation Office (A.T.O.), for
example, the monies awarded to Syd for wages and stock losses etc., referred to
on pages 3 to 4, herein, put us into direct confrontation with the A.T.O. in
regard to the interpretation of section 26(j) of the Income Tax Assessment Act
(I.T.AA.),
[14], which states as follows :-
“26. The assessable income of a taxpayer shall include:
(j) any
amount received by way of insurance or indemnity for or in respect of any
loss:-
(i)
of trading stock which would have been taken into account in computing
taxable income; or
(ii) of profit or income which would have been
assessable income if the loss had not occurred, and any amount
so received for
or in respect of any loss or outgoing which is an allowable deduction;”
At the time, on the proper
interpretation of the common law precedents regarding this particular point of
law, we had to pay taxation on Syd’s award from the Trial Judge in regard to
what he had received insurance upon stock losses and wages, and we maintained
this view with the A.T.O.
However, the A.T.O., insisted on
interpreting section 26(j) contrary to the precedents, and maintained that the
monies awarded to Syd were capital, and not income, but because we have an
income sharing, registered partnership between us, this carried, and still
carries, devastating consequences to us in regard to:-
[1] the past award by
the Trial Judge, and
[2] any future award.
This has left our business and
taxation affairs in an indecipherable bizarre state since 1973, with the interpretation
of section 26(j), left in dispute with the A.T.O., and left in abeyance until
the Full Court Judgement on the M.V.I.T. claim is finally settled, which has since 1973:-
To circumvent this illegality, the
A.T.O., have compromised the law with us, to avoid the responsibility of
finding a solution to our problem, to where each year, we send our taxation
figures devoid of:-
[1] being done on
the prescribed taxation forms,
[2] certification of
correctness, and
[3] any balance
sheet.
All of which we are constrained by
duress, to co-operate with, or be prosecuted, fined, and/or, gaoled, etc.
(b) Wrongfully charged by the Police
Another example, in brief, is that
on June 20, 1975, Syd had a lawful duty in regard to transferring his driver’s
licence, from Western Australia to South Australia, to attend the Port Pirie
Police Station, which he did by appointment with the Sergeant, which was to
also show him some of the documentation regarding the Full Court Judgement and
the taxation problems arising from that.
After the sergeant had read some
of those documents, Syd was shocked and traumatized to find that the Sergeant
“frisked” him, and detained him for several hours without charging him, and
further, that the Sergeant had arranged for a “trial” at the Police Station and
had called a local Doctor, and Justice of the Peace, at which time he charged Syd
with being mentally defective, and wandering at large, all of which was totally
untrue, and proved to be false after the Doctor, and Justice of the Peace
acquitted Syd after hearing him. Syd had been saved from this heinous and
treacherous act, by the integrity of the Doctor and the Justice of the Peace
and from certain destruction to, at least:-
1. firstly
his credibility etc., and then
2. to his
affairs, by them being taken over by the bureaucratic system pursuant to the
then Mental Health Act.
(c) Wrongful criminal conviction by the Police
In 1979, Syd was again wrongfully
charged by the police and also convicted, for assaulting a police officer whilst
he was acting in the execution of his duty. Just briefly, some of the salient
facts, there was no physical contact, no present ability of assault, and some
vital evidence had not been transcribed correctly at the trial turning it from
evidence that would have cleared Syd, into indictable evidence.
It was not until 1991, with most
of the legal work being done by ourselves, and a civil action of trespass
against the police, that the High Court of Australia eventually cleared Syd
name of this conviction, and where he won his civil trespass action [15]. In 1997, Syd received $167,000-00 damages
including for pain, suffering and aggravated and exemplary damages.
(d) Falsely imprisoned
Again just briefly, in March,
1984, we were both falsely imprisoned, Deanne in the Port Augusta Gaol, this
was in relation to action being taken by the A.T.O., and the associated
problems. We
were unable to get a solicitor to
take this matter up against the legal system, and we were therefore compelled
to issue a Writ in the Supreme Court of South Australia ourselves, and sought
damages for false imprisonment from the Deputy Commissioner of Taxation, some
individuals in the Courts Department, Police, gaoler, and the State of South
Australia. In May 1989, because of
other circumstances of how we had been treated by the Court in the Trespass
action, we felt compelled to settle out of court, and we received a written
apology, and compensation from the Deputy Commissioner of Taxation, and the
Director of Court Services.
(e) Other examples
[1] In December
1979, we were further victimized by our church, the Seventh Day Adventist
Church of Port
Pirie.
We had both been baptized into the Seventh Day
Adventist Church in 1958, but following Syd’s wrongful
conviction in 1979, the Church disfellowshiped the
both of us, without giving us a hearing.
Again just briefly,
only 3 days prior to this happening, we received a
letter each from the Church which contained the following
accusations against us :-
To Syd:
1. Disorderly conduct which
brings reproach upon the cause.
To
Deanne:
1. Willful and habitual falsehood
(a) false statements made at
time of Bro S. Plenty’s court case.
(b) subsequent correspondence
relating to the said court case as appearing in local papers.
We were both completely devastated
by this to the point of where after the Church refusing to resolve the matter
with us, we sought a declaration from the Supreme Court of South Australia for
wrongful dismissal etc., which is still pending.
[2[ Also, because
of the un-workableness of the
legal system, we have had, and still have
issues in the Court
with solicitors.
The way the legal system is set
up, it can only be described as a “legal mystique” and because of
ignorance of what goes on with the law, the public in general are insecure,
confused and intimidated, which is where we stood 33 years ago when we first
come into contact with the legal system as innocent victims of a car accident,
but which has now placed a cruel twist of persecution on to us, to come out and
say what we see is the cause of the problem in the legal system.
Since 1973, we have tried to the
best of our ability to get the legal profession, politicians, etc., to get
Syd’s case back into the Court System for just resolution, or to do something
about resolving the untenable position of imprisonment the Western Australian
Full Court has left us in, but as a result, we have just continuously been left
caught “between a rock and a hard place”.
Therefore, we have been placed in
the position of being compelled to ask ourselves, why has, and still is, the
legal system so unworkable that we have found it impossible to get this case
back into the Court irrespective of the fact that we have contacted a multitude
of solicitors?
To answer our own question, there
are sufficient facts that when put together, makes it quite obvious that the legal
system is a self-regulating, and self-serving system, to the detriment
of the public, including ourselves, and as such, the following are our
brief submissions on those facts in answer to our own question:-
(a)
Solicitors Officers of The Court, and the Courts, and/or, The Judiciary Not to
be
Brought Into
Disrepute
Firstly, Syd’s Case is different
to the usual case in that it is one in which the cause of the problem is with
the Court itself by its abuse of process etc., which has put it outside of the
Court System, therefore, because of this, it has needed a legal practitioner
prepared to “call up” innovative, and/or, a special process to get it back into
the Court System. Also, in order to do this, the legal practitioner would
obviously have to be prepared to put before the appropriate Court, the abuses
of process etc., which have defeated and perverted the course of justice by the
Full Court of Western Australia.
Herein lies the problem; and to
understand why this is a problem we need to briefly explain a few principles of
the legal system that when coupled together, create, to say the least, a persuasive, and/or, influence, upon legal
practitioners in regard to a situation such as Syd’s.
In the administration of justice
up until approximately the late 1950’s, there was a strong hold by legal
practitioners upon their independence at the Bar before the Courts in
their representation of their clients, which is typified by the following quote
from the book Legal Ethics [16], with the emphasis ours:
“The right of counsel to
be heard and, indeed, to be present in court arises from his being engaged on
his client’s business before the
court. If a barrister is not engaged in the business before the court it has been
said that he has, legally, no higher right to be present at a trial than a
member of the general public. (f).
Reference (f) : The
Annual Practice, 1949, p. 3685. It
should be remembered, however, that in England a barrister is not an officer of
the Court.
THE
INDEPENDENCE OF THE BAR
Canon 2(1)(ff) calls upon a lawyer to
maintain “a self-respecting independence in the discharge of his professional
duties to his client.”
One of the most jealously guarded
prerogatives of the bar has always been its independence. Counsel has an
absolute right to represent the client of his choice-in England, indeed, it is
considered to be his duty to act for any client who may choose to retain
him(g)-and this right is to be asserted at all costs and in the face of any
opposition. Counsel has, moreover, and absolute right to urge everything that
may properly be said on behalf of his client and to raise all objections which
it may be proper to make.
Historically a courageous bar has proved
the best protection against judicial tyranny.
It was Erskine who asserted the independence of the bar in ringing periods
when, justifying his unpopular defence of Thomas Paine, he announced (h); “I
will forever, at all hazards, assert the dignity, independence and integrity of
the English Bar, without which impartial justice, the most valuable part of the
English constitution, can have no existence.” It was Erskine on another occasion who, threatened by the bench
with committal for contempt when he insisted that the jury’s verdict be
recorded correctly, replied firmly, “Your Lordship may interpose in what manner
you see fit….” And refused to abandon his contention.
The right of a barrister to assert his
independence has been clearly defined in England by the General Council of the
Bar in the following language (i) The Annual Practice, 1912, p.12.. :
“According to the best traditions of the
Bar of England, a barrister should, whilst acting with all due courtesy to the tribunal before which he
is appearing, fearlessly uphold the interests of his client without regard to
any unpleasant circumstances either to himself or to any other person…Any
attempt to coerce or influence any barrister in the execution of what he
considers to be his duty to his client by any social pressure or
disqualification is to be strongly condemned.”
The Court has traditionally shared this
view and even when it is asked to intervene on behalf of a client may do so
reluctantly and upon terms. “If (counsel) gives way to fear or sentiment,” said
Riddle J.A..(j), “and fails to insist upon his client’s rights, it may happen
that, even if the Court, to prevent injustice, exercises its discretion and
grants a new trial, his client will suffer in respect of costs.”
Finally, it should be remarked that the
lawyer, in presenting his client’s case earnestly and fearlessly, ought not to
be swayed by, among other thing, what Lord Halsbury (k) called the popular side
of the question, that is to say “what the newspapers would say of the advocate
next day.” For, Lord Halsbury
continued, “it is the advocate’s duty to have primarily before his mind’s eye
that it is not his own but another’s case he is arguing, and to reason
earnestly and courageously for it, and not to be awed by the modern ogre who,
without any responsibility, sits in his calm retirement and decides for
everybody else what they ought to do.” “
The 2 points we have emphasized in
the above quote is to be noted as follows,
·
The first one we take is “Historically a courageous
bar has proved the best protection against judicial tyranny.” Clearly, this is what every client would
expect of their legal practitioner, to be able to represent them without fear
or fetter upon them to do so.
·
The second point simply states “It should be
remembered however, that in England a barrister is not an officer of the
Court.” As if to say don’t
forget it.
But which,
raises the question of what has this officers of the Court got to do with a
legal practitioner’s duty to his client?
It is to be noted, that in Australia
all solicitors and barristers, (legal practitioners), are officers of the Court
and they have been so for a long time.
In 1912, the rights of legal
practitioners to assert their independence was clearly defined from the
emphasis in the above quote from the book Legal Ethics per, The
Annual Practice.
At that particular point of time,
it is obvious that there were no fetters upon legal practitioners to fearlessly
represent their clients, which is also noted to be done with “all due courtesy
to the tribunal.” Which would only be
expected of every individual who goes before a Court or Judge.
In 1940, the duty of legal
practitioners to the Court was stated in the following terms by Singleton J.,
in the English case of Meyers v. Elman [17], and was endorsed without
qualification by Lord Wright when the case went on to appeal in the House of
Lords, quote:-
“A
solicitor is an officer of the Court and owes a duty to the Court; he is a helper
in the administration of justice. He owes a duty to his client, but if he is
asked or required by his client to do something which is inconsistent with his
duty to the Court, it is for him to point out that he cannot do it and, if
necessary, cease to act.”
However, it appears that in 1969,
when the House of Lords, decided the case of Rondel v. Worsley, [18],
they placed more emphasis, and extension on the meaning of legal practitioners
duties as officers of the Court as well
as it being a justification as to why counsel should have immunity from being
sued by their clients, which is illustrated by the following quotes, with the
emphasis ours:-
Per Lord Reid
“Every counsel has a duty
to his client fearlessly to raise, every issue, advance every argument, and ask
every question, however distasteful, which he thinks will help his client’s
case. But, as an officer of the court concerned with the administration of
justice, he has an overriding duty to the court, to the standards of his
profession, and to the public, which may and often does lead to a conflict
with his client’s wishes or with what the client thinks are his personal
interests. Counsel must not mislead the court, he must not lend himself to
casting aspersions on the other party or witnesses for which there is no
sufficient basis in the information in his possession, he must not withhold
authorities or documents which may tell against his clients but which the law
or the standards of his profession require him to produce. And by so acting he
may well incur the displeasure or worse of his client so that if the case is
lost, his client would or might seek legal redress if that were open to him.”
Per
Lord Pearce:
“The
obvious disadvantages of withdrawing immunity from the advocate are as follows:
On occasions it is and advocates duty to the court to reject a legal or factual
point taken in his favour by the judge, or to remove a misunderstanding which is favourable to his own
case. This duty is of vital importance to the judicial process. Fortunately it
does not frequently occur in a glaring form, though in a minor degree it is
fairly constant. When it does occur in a glaring form, it is very unpleasant
for the advocate. It is hard for him to explain to a client why he is
indulging in what seems treachery to his client because of an abstract
duty to justice and professional honour.
In the difficult borderline case it is undesirable that a man should be
in danger of being influenced by the possibility of an action for negligence.
The court has and must continue to have implicit trust in counsel.”
When you go to a solicitor or a
barrister, (legal practitioners), and pay them to look after your legal
affairs, you expect that his/her, first duty is to you, and that no matter
what, he/she will lawfully look after your legal matters to the end.
However, in view of the above
quotes, a major part of the
un-workableness of the legal system is due to the fact that these Judicial
decisions that have made legal practitioners Officers of the Court have also
said, that in being Officers of the Court, their
first duty is to the Court and not to the client who pays them.
The problems with this is, that litigants
are both clients to their legal practitioners, and to the Court at all times,
and the Judge is at all times in an adversarial position to both parties
whilst the parties are before the Court. The Judge is as much an adversary as
your opponent, as the Judge stands between you and your opponent at all times,
and therefore, there is an untenable conflict of interest in the fact
that the legal system has made legal practitioners officers of the Court, with
their first duty to the Judge, and/or, the Court.
This first duty to the Court is a
comprehensive duty, it is inextricably binding and limitless, there are no Statutes on it, and there are no guidelines,
and therefore there are no restrictions on how far it goes, but it has been
done at the price of one of the most serious conflicts of interest which
is at the very core of the purpose of their existence, the client and justice, because it can
defeat and pervert the course of justice.
The question that must be asked
is, how can legal practitioners be Officers of the Court, with their first duty
being to the Court, and still carry out all of their duties to their clients?
As if this wasn’t enough, there is
a further matter which could be fatal and destructive to the legal
practitioner’s representation, which is contained in sections 15 and 78 of the Legal
Practitioners Act 1981, (South Australia), which states, with the emphasis
ours, quote:-
“ Entitlement
to admission
15. A
person who satisfies the Supreme Court-
(a) that
he or she is of good character; and
(b) that he or she is resident in Australia; and
(c) that-
(i)
he or she has complied with the
rules of the Supreme Court relating to
admission of barristers and
solicitors of the Supreme Court; or
(ii)
insofar as there has been non-compliance
with those rules, he or she should be exempt from such compliance
Establishment of the Tribunal
78. (1) The Legal Practitioners Disciplinary
Tribunal is established.
(2) There
will be 15 members of the Tribunal (each of whom will be a legal practitioner)
appointed by the Governor on
the nomination of the Chief Justice.
In view of the above, it is very
hard to find argument against how the Court is not totally in control over the
“hiring and firing” of legal practitioners, or in other words, their “bread and
butter”, which, at the very least, could hold a very persuasive influence over
legal practitioners.
Further to this, it is our
finding, on the facts, that this first duty to the court of legal
practitioners, has “flowed on” to the protection of the image of the Courts,
and/or, the Judiciary by the legal practitioners, to where, this image, at all
costs, must not be weakened, etc., by anybody saying or doing anything that
would bring it into disrepute. This has
had the effect of where the Courts, and/or, the Judiciary, have become a
“sacred cow”, and “untouchable”, at the expense of its workability and justness
from the public point of view.
To illustrate how this has
affected us, we start with the 1900 English Case of The Queen v. Gray
[19], in which Lord Russell C.J., made the following clear and precise
statement as follows:-
“Any act done or writing published
calculated to bring a Court or a judge of the Court into contempt, or to lower
its authority, is a contempt of Court.”
There
are settled authorities, that words are to be taken in their natural and
ordinary meaning, and the natural and ordinary meaning of these words can only
be that irrespective of what the Court or Judiciary has said or done that is
disreputable, nothing whatsoever can be said or done about it.
The
following 1988 legislation from section 299(1) of the Industrial Relations Act 1988, is verification of just how the legislators have acted upon the
principle of the above quote, and we quote, with the emphasis ours :-
“A
person shall
not:
…………(b)by writing or speech use words
calculated:
……(ii)to bring a member of the Commission or the Commission into
disrepute.”
There would be no doubt that the
1988 piece of legislation quoted above, would have originally been drafted by a
legal practitioner, if not by the Attorney-General at the time, who of course,
is also a legal practitioner, of whom
should have known what they were doing.
But after looking at the rest of
Lord Russell’s statement, the whole scenario becomes a “rolled up”,
inconsistent, contradiction, which effectively leaves the whole matter
indecipherable, and we quote the rest of that statement, with the emphasis
ours, as follows:-
“That is one class of
contempt. Further, any act done or writing published calculated to obstruct or
interfere with the due course of justice or the lawful process of the Courts is
a contempt of Court. The former class belongs to the category which Lord
Harwick L.C. characterized as “scandalizing a Court or a judge.” (In re Read
and Huggonson, (1742) 2 Atk.. 291, 469). That description of that class of
contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to
criticism, and if reasonable argument or expostulation is offered against any
judicial act as contrary to law or the public good, no Court could or would
treat that as contempt of Court.”
Further to the above quote, we
also look at the following comments on this very statement of Lord Russell’s
from the reference book of Legal Ethics [20],
and we quote as follows, with the emphasis ours :-
“CRITICISM
OF THE BENCH Canon 2(2) states:
‘Judges, not being free to
defend themselves are entitled to receive the support of the Bar against unjust
criticism and complaint.
Whenever there is proper ground for serious complaint of a judicial officer, it
is a right and duty of the lawyer to submit the grievance to the proper
authorities.”
The
provision of Canon 2(2) notwithstanding, there appears to be no hard and fast
rule that a lawyer or anyone else may not in a proper case fairly criticize the
bench. In The Queen v. Gray Lord Russell, C.J., discussing the
difference between contempt of Court and fair criticism by a newspaper observed
that “Judges and Courts are alike open to criticism, and if reasonable argument
or expostulation is offered against any judicial act as contrary to law or the
public good, no Court could or would treat that as a contempt of Court.”
However, this must be read subject to the principle that ‘any act done
or writing published calculated to bring a Court or a Judge into contempt, or
to lower his authority, is a contempt of Court’. Specifically, it will be a
contempt of Court to impute unfairness and lack of impartiality to a Judge in
the discharge of his judicial duties (nn).”
In reference (nn) [20],
it further states inter alia:
“Judges
are public servants, and as such they should not complain of fair and
reasonable criticism of their public acts and official conduct. Yet the
importance of maintaining respect to the judicial office cannot be
exaggerated.”
The emphasis we have placed on the
above quotes verifies to the contradictions which makes the whole issue
indecipherable, in that on one hand it is said that you cannot bring the Court
or Judiciary into disrepute irrespective of whether they have done something
disreputable, then on the other hand it is said that you can justly criticize,
then turned the whole thing around again and absolutely “stifled” the right to
so criticize, making it subject to the first point we have referred to from The
Queen v. Gray above.
So with all of this contradiction
and ambiguity, why wouldn’t legal practitioners feel persuaded and/or,
influenced to take the “safe ground” of “running” with the Courts and
the Judiciary?, particularly when they are officers of the Court, with their
first duty to the Court, and herein lies just some of the un-workableness of
the legal system, we have been up against for the last 28 years, because
of the criticism of the “wrongs” that is required against the Full Court
Judgement in Syd’s case.
Until all of these imperative
issues have been remedied to where the legal practitioners can get back to
having independence at the Bar from the Bench, to where they can represent
their clients without fear or fetter, then the public are to take “pot luck” in
having their rights to have their legal practitioners give them complete
protection against judicial tyranny.
We believe until there are such rules, as for example, the rule
in defamation cases, where “the truth is no defamation”; then this “protective”, “safe ground” attitude
will still exist, in spite of the fact that the High Court of Australia, ruled
that the above 1988 legislation in the Industrial Relations Act 1988 is
unconstitutional, and therefore, upholding the public’s right to justly
criticize the Courts and Judiciary, and the following is a quote from the
relevant case [21],
per Deane and Toohey JJ. :
“Inherent in
the Constitution’s doctrine of representative government is an implication of
the freedom of the people to communicate information, opinions and ideas about
all aspects of the government of the Commonwealth, including the qualifications,
conduct and performance of those entrusted (or who seek to be entrusted) with
the exercise of any part of the legislative, executive or judicial powers
of government.”
In September, 1980, in one of our
endeavours to commence an action, as personal litigants, in the High Court of
Australia, to try to resolve the matter ourselves, the Court Registry advised
us that the High Court were not prepared to accept our Writ without leave of a
Judge upon an application to the Court, we applied, and the issue was heard by
His Honour Justice Wilson, after he refused us leave to issue the writ, he said
to Syd; “What you need Mr. Plenty is a sympathetic solicitor.” In other words, we needed to find a special
kind of solicitor, before we would be able to have something done about
resolving our problem, but why should we have to find a special kind of
solicitor, when their duties should all be the same?
It is not a sympathetic, or
special kind of legal practitioner we need, what we need is an independent
bar from the Bench, so that all legal practitioners can stand up for their
clients without fear or fetter, like Erskine said, as described in
reference [16], which commences at the 3rd paragraph of this sub-heading.
(b)
The Law Society
To add to the un-workableness of
this self-regulating, self-serving, legal system is the role that the Law
Society plays. The following quotes
from various reference material, confirms some of what we have already said,
and adds to it.
In the July 1979 Edition of Rydge’s,
Stephen Robertson wrote an article in regard to the New South Wales Legal
Profession Inquiry, that was obviously going on at that time, at the head of
that article were the following words :-
“Lawyers are well organized
but their clients and critics are not; change will be resisted because lawyers
are not anxious to disturb the peace which public ignorance and confusion
obtains for them.”
We have found just how true this
is ourselves, as well as from all of those people we have spoken to that have
taken a complaint to the Law Societies’ Legal Practitioners Complaints
Committee, have all said the same thing, it was a waste of time. In this same
article, Stephen Robertson writes, and we quote:
“We
are told that when a complaint is dismissed, no reasons are given to the
complainant; he receives only a stock letter which may lead him to join the
large number of people who wouldn’t have bothered to complain in the first
place. …….’of the 1296 complaints in the sample, 95.3 per cent did not go
beyond the Legal Department.’ Is the
profession almost as perfect as its self image? Or is the investigation process
under-powered or just sloppy? Or is the Law Society’s duel role as trade
union and disciplinarian an unworkable conflict of interests?” (emphasis
ours)
There are 2 other very pertinent
points to the un-workableness of the legal system via the Law Society, which
comes from the following quotes out of the book Legal Mystique [22]:-
“The
organized profession’s belief that it should make all decision concerning the
delivery of legal services in the community, even though these decisions affect
the community as a whole, is reflected in the powers that professional bodies
have built up over the years. The most important of these powers is the
control Law Societies have over a solicitor’s right to practice. A solicitor’s
payment each year for his practicing certificate is made directly to the Law
Society and without that certificate he is unable to practice law. The
professional bodies also have a substantial influence on the requirements that
must be met by persons before they are initially admitted to membership of the
profession, even though it is the Supreme Court in each State that formally
grants admission.
Nowhere
is the profession’s fortress mentality better illustrated than in the area of
complaints and discipline. The general pattern where a client has a complaint
about the conduct of a solicitor is reflected in NSW where the complaint must
be made to the Law Society, the body set up to represent the interests of
the solicitors, There is, therefore, a clear conflict of interests at the
outset when the body representing solicitors receives the client’s complaint
against one of its members. ”(emphasis ours)
And also; in regard to the
question of complaints:
“One
of the chief defects of this system is that it does not really focus on the
heart of the matter – the client’s complaint. If a client is complaining
that his case has not been handled properly or quickly enough, what he
wants is better or swifter service from his current lawyer. Yet the
existing complaints system concentrates on the question of whether or not the
lawyer should be censured for his conduct. If a lawyer’s conduct has been dishonest
or if his service is continually inadequate he obviously should be suspended, temporarily or permanently. But this provides no
satisfaction to his client and it is no answer to suggest that the client
can take legal action against his lawyer. To do so he will first have to
approach another lawyer who may not be enthusiastic about instituting
proceedings against one of his colleagues. In addition to the expense of a
second lawyer it will probably be necessary to pay the first lawyer’s bill in
full, even if it is disputed, in order to get any documents needed to make out
his current complaint.”
The above quotes speak for themselves as to the “rubber
stamp” position the Law Society takes, and the facts are:
1. The Law Society, and/or, the Complaints
Committees, are run by legal practitioners, for legal
practitioners, and
2. It appears that it is the Supreme Courts who
“hire and fire” legal practitioners;
all of which puts it all into the same family, and/or, brotherhood,
and/or, club.
In our dealings with the Law
Society Complaints Committees in South Australia, we firmly endorse the above
quotes, and add the fact that their pamphlets say quite clearly that they have
“no power to investigate alleged negligence of a legal practitioner”, this only
makes them a farce and a “toothless tiger” as negligence is all about
having a duty and care to someone, therefore this leaves them without any
responsibility as to legal practitioners duty and care to their client, which
is just about everything a legal practitioner does for his client. Yes, you are advised that you can make
representations to a Lay Observer, but the Lay Observer cannot:
1. overrule a
decision by the “Board”
2. intervene
3. give you
legal advice, or
4. reinvestigate
your complaint
once again, only a farce and a “toothless tiger”
We can also add to the last part
of the above quote, to the extent that whilst your complaint is going on, the
Courts will not wait for the client to get his solicitors conduct into order,
his case will still continue on irrespective of what his status is with his
solicitor.
All of these issues once again
raises the point of independence, as where is the independence and
impartiality to be seen for client’s complaints to our Law Societies, and once
again, the fact is that until these imperative issues are remedied, the
public will still be left in, to say the very least, a totally vulnerable
position as to their legal rights.
As an example of one of our own
problems, 3 years ago, having obtained a solicitor who was prepared to seek
legal remedy on the unfinished Western Australian Full Court Judgement, in an
endeavour to break the “vicious circle” this matter has, and is causing us, for
which Counsel was retained. In spite of us providing volumes of relevant
material and offers of anything else they considered they might need, minimal
progress has been made, with non-productive discussions, all of which
necessitated us, 20 months ago, to seek a written opinion from Counsel on the
matter, in order to keep the matter in order.
After our own numerous approaches
to get something forthcoming from Counsel, it only kept on falling on “deaf
ears”, so a few months ago, we felt constrained to make a complaint to the SA
Legal Practitioners Conduct Board, (“Board”), seeking a resolution as to
getting Counsel to “move” in the giving of his written advice. The solicitor maintained that he had done
all that he can reasonably do by merely sending the material on to Counsel and
to keep writing to him reiterating the request, and refused to make any
complaint himself to the “Board” against Counsel’s delays.
We also provided the “Board” with
authoritative sources in support of our submissions, including the following :-
[1] In accordance with the Law Society of South Australian Legal
Practitioners Professional Conduct Rules
[23], when
there is any dispute in regard to counsel’s fees, as an instructing solicitor
to counsel, the solicitor’s
course of resolution, is to report the matter to “The
Society”.
[2] On one occasion we wrote to a former solicitor, and expressed
our concern to him about the way in which
counsel was handling our affairs, our solicitor
inadvertently forwarded our letter on to the counsel, the result was,
that counsel took
issue and ceased to act for us, however, when it was found by him that the
letter was for the
attention of our solicitor only, counsel reversed his
decision to cease to act.
It is the solicitor, who is the only
one who can make the complaint against counsel, as it is the solicitor who
retains and instructs counsel at all times, this is because it is a
“go-between”, transmitted, tandem system, in which, when counsel is retained,
there is no effective right of complaint against counsel available to the
client direct, as procedurally, it would be out of order.
However, the finality of the
matter was, the “Board” considered the matter, and in keeping with the aforesaid
quotes, there was no mention whatsoever of any resolution to the problem, and
they found no evidence of unprofessional or unsatisfactory conduct by the
solicitor, setting up an impossible impasse as far as the workableness of
the legal system is concerned in regard to counsel’s duty to his/her lay
client.
Consequently, we are still
languishing, waiting for Counsel written advice, and can’t even find out when
he is likely to give us his written advice.
(c) Solicitor/client contracts
A further serious anomaly
in regard to solicitors, is the subtle change that has taken place in regard to
their solicitor/client contracts.
A contract is, “An agreement enforceable at law. An essential
feature of contract is a promise by one party to another to do or forbear from
doing certain specified acts.” (Osborns Concise Law Dictionary).
In 1894, in a Queen’s Bench Case in England Underwood, Son & Piper v. Lewis [24], it was held by Lord
Esher:
“The contract
of a solicitor who accepts a retainer in a common law action is, in the absence
of agreement to the contrary, an entire contract to conduct the case of the
client until the action is finished. He is not entitled therefore, without good
cause, on giving reasonable notice to his client, to decline to act further in
the action for him, and thereupon sue for his costs in respect of the previous
conduct of the client’s case.”
It is also to be noted
that solicitor/client contract, is no different to an ordinary contract, and to
support this we quote from, with the emphasis ours:
Warmington v. McMurray [25], as
follows:
“This is not a special rule applicable only
to the relationship of solicitor and client, but is a part of the ordinary law
of contract.”
However, over the
last century, this has changed dramatically, to where today, even though their
own Professional Conduct Rules [23], lay down implied terms of contract, which
includes entire contract, and other ethical duties such as completing their
work for their clients in a competent manner and in a reasonable time, solicitors
in general make their own contracts, which in most cases, because of their
inequitable bargaining power, they are in a position to make harsh, oppressive,
unconscionable or unjust contracts with their clients, this is evident by the
fact that there is generally no inbuilt protection for the client, and to where
the solicitor expects to be paid either up front of their own work, or on a
regular basis, in which, if the client doesn’t pay these costs within a
specified time, generally 14 days, the solicitor will have the right to cease
to act for you, for example we quote from one of the unconscionable contracts
we have been asked to sign:
“(Solicitors name), agree to act for you in respect
of the matter identified in this agreement on the following terms and
conditions:
1. You
will pay for all work done and expenses incurred by us in accordance with the
charges specified in this agreement.
2. We
may render accounts for work done and expenses incurred from time to time at
our own discretion and you agree to pay our costs and disbursements as shown in
such accounts within 14 days of the receipt of the account.
3. We
may call for monies on account of our anticipated costs and disbursements in
such amount as we consider reasonable in response to which you will pay the
amount requested within 14 days.
4. If
interim accounts or monies called for on account of costs and disbursements are
not paid within 14 days we may cease to perform any further work for you and
terminate this agreement.
5. If
you fail to reply to our correspondence, telephone calls or otherwise fail to
provide us with adequate instructions as required from time to time we may
terminate this agreement.
6. You
may terminate this agreement at any time by notice in writing. If you pay our
costs and disbursements incurred to the date of termination of this agreement
in full, you may have the papers to which you are entitled subject to our
discretion to copy them and to charge for the copying at the rate set out in
this agreement which must be paid prior to the delivery to you of the papers.
7. Interest
may be charged on the outstanding balance of any account at the rate of 18% per
annum from the date payment was due until payment.
Review: The rates set out in this agreement are
subject to review from time to time and you agree to any increase applied
uniformly to our clients.”
As you can see, from the above
proposed contract, solicitors are very quick to let you know that you are under
an obligation to pay them “pronto”, but as far as their own obligations to you
are concerned, as is obvious from the above proposed contract, there is nothing
whatsoever in it about what the solicitor is going to do for the client, it is
all a “one way traffic” in favour of the solicitor, if this contract was signed
by a client, he would have no protection as to what price rises would take
place, he would have lost any right to question what he was paying for, and
why, he would be under constant threat of the solicitor ceasing to act if he
didn’t pay his accounts in full and on time within the 14 days, and he would
have no power to see that his solicitor was looking after his affairs
competently or getting them done in a reasonable time, etc., if the client
terminates the agreement, he would be denied his rights to have access to his
own file, unless he pays the solicitors costs, and for photocopying of the file
for the solicitor’s own records, all of which is unlawful, especially if the client
has terminated the agreement because of solicitor’s neglect or other
unprofessional conduct.
As to the question of solicitor’s
ceasing to act for their clients, unless they have a “good cause” for doing so,
they are not entitled to their costs, as per the above quote from Underwood,
Son & Piper v. Lewis, but in addition to this, in the South Australian
Supreme Court Rules in regard to a solicitor ceasing to act, there is ambiguity
in favour of the solicitors, to where it is left open for the solicitor to
“have a bob each way”, and abuse his position.
Over the years, we have been placed in a position of where we have been
forced to have to try to settle those rules, and this is noted in the
commentary to Rule 11.06 of the South Australian Supreme Court Rules, in the
book Civil Procedure in South Australia.
To give you some idea of
solicitor’s privileged position as far as the “so-called” public policy
is concerned, we quote the following from the book, Lawyers [26], with the emphasis ours:
“It is respectfully
submitted that an Australian court should be slow to follow Rondel v.
Worsley. That case applies a rule, which though of long standing is now, in
the light of Hedley Byrne, anomalous. The public policy reasons advanced
as a justification of the rule appear on analysis to be less than convincing.
But what is more important is that in an “image”-conscious age we have the law
saying to the ordinary man: “If you pay a man to do a job and he fails to take
reasonable care and as a result you suffer loss, you may come to the court,
which is a marvelous institution run by lawyers, and recover your loss from
him. That is, of course, unless he happens to be a lawyer himself.” And it must
be small consolation to such a hypothetical ordinary man that this sacrifice is
being made in the interests of some vague and remote deity called “public
policy.”
Furthermore, in quoting from the
same book, Lawyers [26], “there seems to be no general duty on
Australian solicitors to accept instructions from any client.” So if you go to a solicitor to take your case,
without reason, he doesn’t have to accept your instructions to take your case.
(d) Solicitors Bill of Costs pursuant to the
South Australian Supreme Court Rules
Another serious anomaly, which is
an injustice to clients at least in South Australia, is in the presumption of
the Supreme Court Rules that he is entitled to have his costs. This presumption is in the fact that
pursuant to the Rules of the Court, the solicitor can file his Bill of Costs to
be taxed off by the Court, and all the client can object to is some specific
parts of the Bill to have the Bill reduced.
The solicitor is in the privileged
position that he doesn’t have to establish liability to any entitlement as to
why he should get his costs. Even though the authorities say that solicitor
contract is no different to any other ordinary contract, under the Supreme
Court Rules, he doesn’t even have to establish that there was even a contract,
and the client has no right to claim e.g., a breach of contract or negligence
against the solicitor in defence of the solicitor’s Bill of Costs.
If the client wants to object in
regard to e.g., his solicitor’s breach of contract, or negligence, etc.,
possibly, the only way he can do it at the present time is to commence an
action in which he would be the plaintiff with all the onus upon him which a
plaintiff normally carries, when the onus should be upon the solicitor to prove
his entitlement to the costs he has claimed.
The irony of this situation is the
denial of natural justice to the client, because all that the client
wants to do, is to defend himself from his solicitor’s unjust claims against
him.
Which turns the whole issue into a
presumption of law that, irrespective of breaches of contract or negligence,
solicitors must get paid, which is a situation we are currently finding
ourselves in, and have been in many times before.
Is it any wonder that the public
get the very strong impression, that the legal system, is made by legal
practitioners, for legal practitioners
In support of this issue we quote
from the case of King William Law Chambers v. Mobitel [27],
as follows:
“Indeed
it is not open to a person to whom a bill is delivered, to seek a taxation for
the purpose of disputing the retainer.”
Quite often, you hear about
“insurance cheats”, in personal injury cases, being exposed, in regard to
personal injuries being faked.
But what about when the “boot is
on the other foot”, when the injured party is being cheated from his rightful
insurance claim because of the abuse of process, etc., of the Courts; and then
the injured party being persecuted for the rest of their life simply because he
can’t get his proper claim resolved because the legal system set up to protect
his rightful claim, is unworkable.
The legal system is supposed to be
there as the public’s “watch-dog” over the administration justice, but
it is more than apparent from all of the aforesaid that, the legal system is
a self-regulating, and self-serving system, which makes it appear like a
“Monolith” and/or, like a “Union”, or a “silent convention and/or, collusion of
loyalty”, or a “brotherhood”, etc., with no independent place for the public to
go when the Courts themselves go wrong.
“A
judge of one of the superior courts is absolutely exempt from all civil
liability for acts done by him in the execution of his judicial functions. His
exemption from civil liability is absolute, extending not merely to errors of
law and fact, but to the malicious, corrupt, or oppressive exercise of his
judicial powers. For it is better that occasional injustice should be done
and remain unredressed under the cover of this immunity than that the
independence of the judicature and strength of the administration of justice
should be weakened by the liability of judges to unfounded and vexatious
charges of error, malice, or incompetence brought against them by disappointed
litigants. The remedy for judicial
errors is some form of appeal to a higher court, and the remedy for
judicial oppression or corruption is a criminal prosecution or the removal of
the offending judge; but in neither case can he be called on to defend his
judgement in an action for damages brought against him by an injured litigant.
Nor is the Crown vicariously liable for his acts.” (emphasis ours).
But in considering the scandalous
position the Full Court of Western Australia placed Syd in, with the so-called
settled laws of precedent being left in such a chaotic state, where they are
just a means for solicitors to argue the point over, and for Judges to change
whenever it suits them, to where the average person could only come to the
conclusion that there is no such thing as settled laws to where you can hold it
up and say, that is the law that I can
stand upon; and with all of the fetters upon legal practitioners as
officers of the Court to uphold the status quo image of the Court at all costs,
even at the costs of justice, and even though clients like us have to become
the “scapegoats”, or the “sacrificial lambs”, all in the name of public policy, is it any wonder we have
been 33 years entangled within the legal system, trying to get legal
practitioners to actually do something about having the wrongs dealt with by
the Courts, and still can’t get resolution.
In 1996, in desperation of our
situation, we felt that the only way we were ever going to be able to get out
of this untenable and persecutionary situation, once and for all, was to file
an action in the Supreme Court of South Australia, against The State of Western
Australia, The State of South Australia, and The Commonwealth of Australia,
which we did, and we sought from the Court equitable relief by way of :
[1] a declaration,
in brief, that the defendants had all breached, neglected or failed in their
duties to, make good
laws for peace, order and good government, in
accordance with section 51 of The Australian Constitution,
within which we had been denied natural justice,
natural rights, natural happiness etc.,
[2] damages, or
alternatively,
(a) an order by
the Court that the authorities that be, relieve the plaintiffs (us) from all of
their assets that would be necessary for them to become “wards of the country”
and be paid by the social welfare for their sustenance; in order to relieve
them from any further responsibilities to the authorities of either the
Commonwealth of Australia, or the States, or alternatively,
(b)
an order by the Court that the authorities that be, find
some dignified way for the plaintiffs to be relieved from their persecuted and
tormented lives.
After having actually filed this
51 page action in the Supreme Court of South Australia, and served it upon the
Commonwealth and State Crown Solicitors, we were forced into discontinuing the
action as a result of solicitors as officers of the Court, ceasing to act for
us after the solicitor had required us to pay and we did pay him, up front,
$10,000-00, and the fact that the legal system will not be brought into any
form of responsibility.
When we have asked our members of
Parliament, both State and Commonwealth, to assist us to find a remedy for our
dilemma with the legal system; and especially in relation to the imprisonment
it has caused us with the involvement of our taxation affairs; they have simply
created a “red-herring” answer, that there is nothing they can do because of the
overriding independence of the judiciary, this stance has been maintained
by them, even though it has been pointed out to them that this “so-called”
Judicial independence, is unconstitutional, and is merely tradition, as both
the South Australian and the Commonwealth Constitutions, give powers to the
Parliaments to:
1. Make laws
pertaining to the Judiciary, and
2. remove members of the Judiciary for
misbehaviour.
Naturally, because it is a legal
matter, they refer the problem on to the respective Attorneys-General, who are
after all, a part of the legal system itself, including the fact that they are
officers of the Court, and are therefore, without doubt, also steeped in all
the legal “protectionism” etc. in any event.
The Crown Proceedings Acts have
paved the way in regard to the carry over from the past Rule of Law that the
Queen can do no wrong, but the Statutes have not gone far enough to protect the
public from these “left over trappings” to protect the essential
independence of the Bar against the Bench, which is the “gateway” to the
public’s rights, and it is our strenuous submission, based on all the aforesaid
facts, that we do not have an independent Bar from the Bench, and the legal,
and/or, political systems should be making sure that Australia has a factual,
independent Bar from the Bench.
It is alright to talk about public
policy and public interests, but if it doesn’t include the public’s
rights then what is the good of it. As long as nothing is being done about law
reform over these issues it is our strenuous submission that it can be
firmly stated that the Australian public is being “taken for a ride” by our
legal system.
The legislators of our country
need to specifically attend to making appropriate statutes that give the public
some democratic rights in the legal system.
On June 29, 1999, on the Australian Broadcasting Commission’s Television
program “Lateline”, there was a discussion involving the Shadow
Attorney-General for the Federal Parliament, Robert McCleland, the discussion
was in regard to whether or not the newly appointed Judge to the High Court of
Australia, Justice Callinan, should be the subject of a Senate Inquiry or not,
because of some “suspect” conduct of some litigation some years prior to his
appointment to the High Court, during that discussion Mr. McCleland agreed that
there was a need for some structure for where, “complaints against Family Court
Judges, the Judiciary generally could go through an appropriate safety valve.
In other words instead of people throwing bombs at the Family Court, if there
was some mechanism whereby those complaints could be at least heard, it may
itself provide a benefit to society as an outlet to grievances, and in
appropriate cases an investigation of grievances,” and he considered it is
an issue worth examination.
That was 2 years ago, and we don’t
believe that anything has been done in this regard since then, and we, and the
Australian public, are still waiting.
So when are the politicians going
to do something about this untenable position the legal system has left us in
and no doubt many others?, or for that matter, when is the legal system itself
going to do something about taking heed of its own undertaking, and/or, guarantee
given by Lord Hewart in 1926, when he said, and we quote again; “…a long
line of cases show that it is not merely of some importance but it is of
fundamental importance that justice should not only be done, but should be
manifestly and undoubtedly be seen to be done.”[1]?
As law abiding people, we have
tried very patiently for 33 years, to work through the legal system to resolve
our affairs, we haven’t done like some others have done, and thrown bombs at
the courts or Parliaments, but the only reward we have got is continuous
persecution, and the problem of going on under the duress of the cruelty of our
situation is the serious question of just how much more can we keep taking?
It is a recognized fact that 25
years is a life sentence for the worst type of criminals, which is even reduced
by remission of good behaviour, but we have had 33 years life sentence with it
still running on, with justice being delayed as it has been and still is, is
justice denied.
Therefore, we ask the question as to
whether there are any members of the public, civil libertarians, or
humanitarians, politicians, legal practitioners, or Judges in Australia, who
would be interested in law reform, justice and mercy, and an end to
persecution?
We have many more anomalies in the legal system that we
intend to bring to you at a later date, which will include matters such as:
[1] The
King v. Sussex Justices Ex parte McCarthy,
[1924] 1 King’ Bench, 256 @ 259
[2] Plenty
v. Argus, [1975] Western Australian Reports, 155, @ 156.
[3] Buczynski
v. McDonald, [1970] 1 South Australian State Reports, 569 @ 573.
[4] Plenty
v. Argus, [1975] Western Australian Reports, 155 @ 159.
[5] Osborn’s
Concise Law Dictionary, John Burke, Sweet & Maxwell, London (1976)
[6] The
Commonwealth of Australia Constitution, Government Printer, Canberra (1974)
[7] Salmond
on The Law of Torts, 17th Edition, R.F.V. Heuston, Sweet &
Maxwell, London (1977) page 4.
[8] Cases
and Materials on the Legal Process, Maher, Waller & Derham, 3rd
Edition by Kevin S.
Pose, and Malcolm D.H. Smith, The Law Book Company, Sydney (1979) page
131.
[9] Walker
v. International Paper Co., 92 So 2nd 445, [1957]
[10] Human
Rights Commission Act 1981, Schedule 1, Part 3, Article 7., Commonwealth
Government Printer.
[11] Rules
of The Supreme Court of Western Australia, 1971, Government Printer.
[12] Supreme
Court Act of Western Australia, 1935-1979, Government Printer
[13] Ashmore
v. British Coal Corp., [1990] 2 All ER 981
[14] Income
Tax Assessment Act, 1936,
[15] Plenty
v. Dillon & Others, [1991], 98 Australian Law Reports, 353.
[16] Legal
Ethics, Mark M. Orkin, Cartwright & Sons Ltd., Toronto, Canada, pages
39, 40.
[17] Legal
Ethics, Mark M. Orkin, Cartwright & Sons Ltd., Toronto, Canada, pages
75, 76.
[18] Rondel
v. Worsley, [1969], 1 Appeal Cases 191, @ 227,228, and 272
[19] The
Queen v. Gray, [1900], 2 Queen’s Bench 36 @ 40.
[20] Legal
Ethics, Mark M. Orkin, Cartwright & Sons Ltd., Toronto, Canada, pages
41 and 42.
[21] Nationwide
News Pty Ltd, v. Wills, [1991-1992], 177 Commonwealth Law Reports, 1 @ 3
[22] The
Legal Mystique, Michael Sexton, and Laurence W. Maher, pages 166-167.
[23] The Law Society of Sth Aust., Legal
Practitioners Professional Conduct Rules, 1/7/93,
paragraphs 11.4., and the sub-paragraphs to paragraph 9.
[24] Underwood,
Piper & Son v. Lewis, [1894] 2 Queen’s Bench, 306.
[25] Warmingtons
v. McMurray, [1936], 2 King’s Bench Division, 745
[26] Lawyers,
Julian Disney and Others, page 602, 603, and 528
[27] King
William Chambers v. Mobitel, [1981], 29 South Australian State Reports, 316
@ 317
[28] Salmond
on The Law of Torts, 17th Edition, R.F.V. Heuston, Sweet &
Maxwell, London, (1977), page 408.
To contact us:
By post: PO
Box 715,
PORT
PIRIE SA 5540
Australia
By Email: sgdp@centralonline.com.au