Statistics on the small number of cases that go to trial in WA

It is very interesting to get statistics about how only a small number of cases actually go to trial.

In the Department of Justice's Annual Report 2015/2016 the raw numbers are published for the Supreme Court of Western Australia and the District Court of Western Australia.

Only 51 civil cases went to trial in the Supreme Court, out of 2,964 cases that were finalised.

This means 98.25 % of cases were settled / discontinued etc and only 1.75 % went to trial.

Only 50 civil cases went to trial in the District Court, out of 4,948 cases that were finalised. 

This means 98.99 % of cases were settled / discontinued etc and only 1.01 % went to trial.

Similar statistics are not available online for the Magistrates Court of WA.

I have put together this spreadsheet, showing more detail.

Questions to ask before hiring a lawyer

You should ask these questions before hiring a lawyer.

Duplication of work

To avoid duplication of legal costs it is important to find out who will actually be doing the work.

1. Will the Partner, or person you speak to on the first occasion, be getting a junior lawyer to do the work?

2. Does this include Court appearances and mediations?

3. How is the potential for duplication of legal costs, as a result, avoided?

4. If the case goes to trial, or there are any contested hearings in the lead up to trial, will a barrister be hired too?

5. How will any duplication of legal costs be avoided as a result of hiring a barrister?

Experience

It is important to know what legal experience the lawyer or lawyers doing the work have.

1. How long have you been admitted as a lawyer? Have you done this type of work, before, and how frequently?

2. How often do you appear in Court?

3. If the matter is likely to be heard in the Magistrates Court of Western Australia, do you have experience in the Magistrates Court and in Magistrates Court procedure? 

4. If the matter is likely to be heard in the District Court or Supreme Court of Western Australia, do you have experience in those Courts?

5. What extra training have you done and do on an ongoing basis, relevant to the work I am engaging you to do?

Costs & advice

The most frustrating part of hiring a lawyer is the limited information available your future legal costs.

1. On what basis are the costs estimates provided? Has a spreadsheet been used to do the estimates? Can the spreadsheet be made available?

2. What is the method for providing advice? Is this provided in writing or orally or both? If both, what factor determines whether the advice is provided in writing vs orally?

3. If we need to get in touch, can we send each other text messages to avoid wasted time leaving messages for each other, by telephone? Do you use Skype?

4. Based on your experience, what % of costs in a case like this are recovered if we win? What am I getting from you for the "gap"?

5. Do you charge anything extra for work done by secretaries and non-legal staff?

6. Will you provide me options for work to be contracted out, including offshore? (This is such as in relation to preparation of list of documents for discovery)?

7. If there is any need for a taxation of costs in relation to costs awarded during the course of the case, do you personally do the bill of costs and attend any hearing, or do you hire an external costs consultant?

8. If I have questions about my bill, how do you make it easy for me to ask questions?

9. Do you provide audio recordings of our meetings, at request? What about telephone conversations, as well?

Caveat disputes

Almost always, there is an urgency to a caveat dispute.

It is important to hire someone who has dealt with caveat disputes before.

If you are the person who has lodged a caveat on the title, you will receive a letter from the Registrar of Titles (Landgate), letting you know that you have a 21-day window of time in which to get a Supreme Court order for the extension of the operation of the caveat.

This means that any delay in the lawyer not being able to: 

• quickly call upon previous documents drafted on previous matters, and

• being immediately familiar with the applicable law,

could be costly, both in terms of legal bills, but also lost time.

Not only is there the need to act within time, but any time spent getting up to speed with the law and becoming familiar with the documents that are required, is less time spent thinking about the issues and getting to grips with what the Court needs to know specifically in this instance.

We have dealt with these applications many times before. We are able to quickly call upon documents used in previous matters as precedent documents.

Our experience gives us the insight into the relevant questions to ask you and how to quickly, and in a cost efficient way, get across the matter.

We also know how best to liaise with the staff at the Court to get an urgent hearing.

We do not have to hire a barrister, which can add to delay and duplication of costs, because we are personally experienced at doing this work as barristers in Court.

New case - Defamation damages for $480,000

Interesting defamation article from news.com.au: Respected surgeon wins $480,000 in defamation case involving disgruntled patient

Read the judgment here.

Employer fined $70,000 over worker’s skylight fall

A WA employer has been fined $70,000 over a worker’s skylight fall.  See Worksafe's media statement and an article that appeared in The West Australian.

Online reviews

Businesses and ordinary people need to be increasingly aware of the affect internet publications can have on online reputations.

Google product reviews and a plethora of independent review sites such as Zomato, yelp, TripAdvisor and Product Review have made it increasingly easy to damage somebody’s personal or business reputation online.

Smartphones have made it easier to instantly post an online review, often, without thinking of the consequences.

In general, the Defamation Act 2005 (WA) (see section 9 for more details) prevents corporations with more than 10 employees (full-time equivalent) from commencing proceedings for defamation.

However, it is still possible to defame:

• an employee or the owner of the business with more than 10 employees who may wish to commence proceedings personally; or

• corporations with fewer than 10 employees.

There may also be other legal avenues for corporations to pursue, such as the law relating to misleading and deceptive conduct.

In June 2017, the Supreme Court of NSW ordered 2 defendants to pay $480,000 in damages to the plaintiff for publications on a website, on Facebook, on Pinterest and a YouTube video which were each defamatory and alleged that the plaintiff was, amongst other things, criminally negligent and unethical.  In that case, the Plaintiff was a surgeon who had performed an operation on the second defendant (Al Muderis v Duncan (No 3) [2017] NSWSC 726).

Defences

However, there can be successful defences.

There can be a defence if the statement was a fair comment or honest opinion, for example.

Under the common law the defence of ‘fair comment’ is available if the defamatory statement is based on a factual matter which is substantially true.

The Defamation Act 2005 s 31 takes the common law defence a step further. 

The defence of honest opinion broadens the requirement that the factual basis be ‘substantially true’ to a requirement that it be based on ‘proper material’. 

The defence is available if (Defamation Act 2005 s 31(1)):

• The matter was an expression of opinion rather than a statement of fact,

• The opinion was related to a matter of public interest, and

• The opinion is based on proper material.

For the defence to be successful, it must be shown that the defamatory material is expressed as an opinion, and not as fact. As Lord Denning stated in Slim v Telegraph Ltd [1968] 2 QB 157 at 170:

“If he was an honest man expressing his genuine opinion on a subject of public interest then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it.”

The defence will be defeated however, if it is shown that the defendant did not honestly hold the opinion.

Example

In McEloney v Massey [2015] WADC 126,[3] the Court considered whether Facebook posts by the defendant in the “Poms in Perth” Facebook page were defamatory.

The Facebook posts related to an accountant whose services the defendant had sought.

The Facebook posts alleged that the accountant was unprofessional and rude and ripped off and overcharged his clients. The defendant raised the defences of justification and honest opinion.

The Court found that the expectations of the reasonable reader varied depending on the forum in which the material was published. The Court considered that the use of the words “clown” and “shark” in the Facebook posts indicated that it was an expression of an opinion.

The Court considered that because the accountant provided services to the public, the way he conducted himself in providing the services was a matter of public interest.

The matter was based on the personal experiences of the defendant and was based on proper material.

Higher penalties for breaches of workers’ occupational health and safety laws

The WA State Government has plans to increase the penalties for breaches of workers’ occupational health and safety laws. See the last few paragraphs in this article in The West Australian newspaper from 28 August 2017.

How we keep our rates low

13+ years experience as a lawyer has taught me how to get the fundamentals right.

Although legal disputes are complex, fundamentally what lawyers do is write documents, plus some speaking (either public-speaking in Court or private-speaking in mediations / meetings).

Getting the fundamentals right requires clarity of thought about the tasks-at-hand.  

These are:

1. First, being able to write well.

2. Second, calling upon skills and knowledge to make that writing quality-writing and persuasive.

3. Third – after these are achieved – doing it fast.

Being fast means cost-savings to clients, because less time is spent.

Slow lawyers, sitting at their desks typing slowly, is a fact-of-life in our modern legal system. (Clients would be shocked to know how much slow-typing feeds into massive legal bills.)

Dictation, instead of typing, is what makes for fast lawyers.

My methods are:

1. Don't type - dictate.

2. Don't incur the costs of typists to type the dictation.

3. Automate.

4. Get physically away from the computer-screen, so you can quickly scan/look at the primary documents whilst dictating.

We use Dragon NaturallySpeaking to produce our written work.

This is done by using dictaphones to create an audio-file, that is processed by Dragon automatically.

It is then checked for accuracy by a secretary before being printed-out for us to do any additional drafting.

These fundamentals have helped us keep our hourly rates low compared to most other lawyers.

Note:

Many other lawyers around the world are also doing this - but the take-up is slow. 

Worksafe prosecutions

Only 11 or 12 Worksafe prosecutions are commenced each year. This is despite Worksafe conducting 8,000+ investigations each year.

The detailed information is publicly available from these websites:

1. https://www.commerce.wa.gov.au/sites/default/files/atoms/files/doc_ar_2015-2016.pdf

2. http://prosecutions.commerce.wa.gov.au/)

Over the last few years I have acted for employers who have been prosecuted. This includes in a workplace fatality case.

Having a lawyer who is experienced is important because:

• this is a complex area of the law,

• the penalties can be large.

The small number of prosecutions means only a relatively few lawyers have done this work before.

Also, if you are subject to a Worksafe investigation, you can engage me at the investigation stage to assist you when responding to, and dealing with, Worksafe's investigators.

Court-ordered sale of jointly owned land

When can it arise?

Where parties jointly own land, whether as join tenants or as tenants in common, one or more co-owners can apply to the Court for an order that the land be sold or partitioned (Property Law Act 1969 ss 126, 127).  As tenants  in common own distinct shares of the property, which may be unequal, the purpose of s 126, is to protect the interests of co-owners where disputes arise relating to how to deal with the land (Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635 at 650 per Brennan J).  

What orders can the Court make?

The Court can order either the sale or partition of the land. Sale is an alternative to partition and can only be ordered if a party specifically requests it (De Campo Holdings Pty Ltd v Cianciullo [1977] WAR 56 per Jones J). If a co-owner applies for partition, then there is no need to show the Court that a partition is better than a sale unless another co-owner requests a sale (De Campo Holdings Pty Ltd v Cianciullo [1977] WAR 56 per Jones J). 

The Court must order a sale of the land instead of partition if requested by a party or parties who hold at least a half share of the property, unless there is a good reason to the contrary (Property Law Act 1969 s 126(1)). Therefore, the Court requires a ‘good reason’ in order to exercise its discretion to order a partition instead of sale in those circumstances (Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635 at 666 per Toohey J). 
However, there is no requirement that the party or parties seeking sale or partition hold a half interest in the land. The Property Law Act 1969 s 126(2) provides that the Court may, on the request of any party interested, direct a sale where:
-    by reason of the nature of the land; 
-    the number of parties interested; or
-    any other circumstance
the sale of land would be for the benefit of the parties interested. 

What if I agree to purchase their share?

The Court may also, on request from any party interested, direct the land be sold unless some of the other parties given an undertaking to purchase the share of the party requesting a sale. Once such an undertaking is given the Court may direct a valuation of the portion of the land in question (Property Law Act 1969 s 126(3)). However, It is not open to a co-owner to attempt to defeat a Court ordered sale under s 126 by undertaking to purchase the share of the co-owner applying for the sale (Martin-Smith v Woodhead [1990] WAR 62). 

Can you contract out of s 126?

The High Court decision of Hall v Busst [1960] HCA 84 is authority for the proposition that public policy favours the free alienability of private property, and thus, in some cases a contractual provision may be invalid if it operates as such a restraint. 

For example, in in Elton v Cavill (No 2) (1994) 34 NSWLR 289, Young J found that a clause which required an owner to gain all of the other owners consent to the sale of his share, and such consent might be refused with no reason given, was an invalid restraint on alienation. 
However, you may be able to contract out of s 126 if it is for a valid collateral purpose, which has an overriding public policy objective. Or, alternatively, if the contract does not entirely restrain alienation.  

In Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635, two tenants in common held equal shares in a property. The agreement between them contained a provision which prohibited each from disposing of their interest in the land without first offering it to the other for a price of 50% of the land value. The High Court held that the provision did not prevent one from making an application under s 126 as the provision referred to one party only disposing of their interest, and not to a situation under s 126 where the entire freehold was disposed of. However, the Court did not expressly decide whether an agreement which expressly contracted out of or prevented the application of s 126 would be invalid (at 661).