Title Walsh.M

Braun & Bond v Legal Complaints Review Officer & Simone Harris [2022] NZHC 1501

In this matter, Greg Walsh acted on a pro bono basis for Simone Harris, the Second Respondent.

An application was made by the Applicants for judicial review of a decision of Legal Complaints Review Officer (‘LCRO’) asserting that there was a slip in a decision of the Law Society Standards Committee which should have been corrected by the LCRO.

The Second Respondent’s late father, Mr Harris, assisted his daughter in respect of a costs dispute with the Applicants. That dispute was the subject of a referral to a Costs Assessor in respect of twenty bills which totalled $52,958.50. The Assessor in his report included GST (the GST error). He recommended that the total fee was fair and reasonable for the work performed.

On 25 May 2021, the LCRO sent the Assessor’s report to the Applicants with a notice of hearing, setting the matter down on 7 July 2021. Submissions were provided. The Applicants did not notice the GST error in the Assessor’s report. The Applicants contended that this was an oversight on their behalf.

On 30 May 2021, the Second Respondent made submissions by way of a one page letter from her father, the late Mr Harris, accepting the findings of the Assessor and as a gesture of good faith, paying a sum of NZ$30,000 leaving a balance of NZ$22,000 in the event that the findings of the Assessor were adopted.

On 17 August 2021, the Committee sent the Applicants it notice of determination which again referred to the figure of $52,958.50 including disbursements and GST. It resolved to accept the recommendation of the Assessor and decided to take no further action on the complaint.

In the letter of 30 May 2021, Mr Harris had made submissions in respect of various issues including abuse of process and issue of estoppel.

On 15 September 2021, the Professional Standards officer informed the Applicants that the Committee had sought clarification on the Assessor who agreed that he had made an error. The Second Respondent’s concern was not forthcoming to the correction of that error.

On 24 September 2021, the Applicants applied to the LCRO for a review of the Committee’s decision. On 14 January 2022, the LCRO issued a decision striking out the application as an “abuse of process”. A number of errors were contended on behalf of the Applicants and in respect of each they were successful in the judgment of Gordon J. Mr Walsh prepared submissions on behalf of the Second Respondent and these were filed and served though time constraints did not permit Mr Walsh to personally appear in the matter as there was not sufficient time for an application under the relevant legislation to be dealt with by the New Zealand Law Society to be admitted in New Zealand for the purposes of representing the Second Respondent in these proceedings.

The Court made orders that the Committee could not rectify the error and re-issued its decision and the s.161 certificate had the Second Respondent considered to the correction of the error. The tests applied by the LCRO were found to be in error and the application for judicial review was granted and the Committee’s decision of 17 August 2021 and s.161 certificate were admitted so the alleged tax invoices total $52,958.50 excluding GST and disbursements. It is apparent that in New Zealand, law practices charge a flat 15% interest for outstanding costs and disbursements. There is no requirement for disclosure as to an estimate of total costs as provided in the legislation throughout Australia, such as the Legal Profession Uniform Law (NSW) (‘LPUL’).

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New Zealand Herald – The three-year battle: Lawyers win fight for extra 15 per cent after fees mistake.

Dawson v R [2021] NSWCCA 117

The Honourable Justice Bathurst states “This case is an unusual one in that it involves both pre-trial publicity of an egregious nature and an inordinate delay in the bringing of the prosecution. The applicant’s complaint is that these matters in combination would render any trial necessarily unfair so that any conviction would bring the administration of justice into disrepute.”  continue to the judgment below…

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R v Dawson [2020] NSWSC 1221

On 3 April 2020, Christopher Dawson was arraigned on an indictment dated 30 March 2020 charging him with the murder of his then wife, Lynette Dawson, at Bayview in the State of New South Wales on or about 8 January 1982. On his arraignment he entered a plea of not guilty. 

By a notice of motion dated 7 April 2020, Mr Dawson (the applicant) applies for an order that the indictment be permanently stayed on the following grounds:

  1. The trial of the applicant will be productive of an injustice and incurable unfairness where the allegation of murder involves events which occurred in 1982.
  2. The applicant will be severely prejudiced in his defence as a result of the contamination of evidence and/or collusion between the Crown witnesses.
  3. The combination of delay and the contamination/collusion of Crown witnesses has prejudiced the applicant’s ability to defend the allegation of murder such that his trial will be so unfairly or unjustifiably oppressive that its continuation constitutes an abuse of process.

The evidence adduced on the application was voluminous. A supporting affidavit sworn by Mr Walsh, solicitor for the applicant, annexed five lever arch folders of material. The affidavit was read without objection. The material annexed to Mr Walsh’s affidavit included the brief of evidence served on the applicant following his extradition from Queensland under warrant on 6 December 2018. It also included the Crown case statement dated 23 April 2020 which was filed in this Court in accordance with the Crown’s obligations under s 142 of the Criminal Procedure Act 1986 (NSW)… continue to the judgment below…

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R v Dawson [2022] NSWSC 552

On 3 April 2020 the accused, Christopher Michael Dawson, was arraigned in this Court on a charge that on or about 8 January 1982 he murdered Lynette Joy Dawson. He pleaded not guilty.

Mr Dawson’s trial is currently listed to commence on 9 May 2022. On 14 April 2022, he signed an election pursuant to s 132(1) of the Criminal Procedure Act 1986 (“CPA”) for trial by a judge sitting without a jury. On the same day, he filed a notice of motion seeking that order.

The application was listed before The Honourable Beech-Jones CJ at CL on 2 May 2022. After refusing an application for adjournment, the matter proceeded. Shortly after submissions concluded, His Honour made an order granting the application for a Judge alone trial. His Honour stated that the reasons for that order would be published later. This judgment constitutes those reasons.

At the request of the parties, Beech-Jones CJ delayed publication of these reasons pending the outcome of an application for a non -publication order in respect of all aspects of the trial. On 9 May 2022, Harrison J refused that application… continue to the judgment below…

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Mental Health for Members of the Legal Profession

MENTAL HEALTH FOR MEMBERS OF THE LEGAL PROFESSION –
A MODERN CONUNDRUM[1]

Greg Walsh OAM

INTRODUCTION

I have been a legal practitioner for 45 years and as an articled clerk prior to my admission, I
have nearly 50 years of experience in the practice of law.

I have welcomed the opportunity of not only appearing in the State of NSW but all States of
Australia including as trial Counsel and also in respect of disciplinary matters.

By way of background, I was honoured to serve as a councillor at the Law Society of NSW
and also as a member of a number of committees, including a task force that examined many
years ago this very issue. As a result of the work of that task force, there was set up by the Law
Society of NSW a system for advising legal practitioners which is now known as the Senior
Solicitor’s Scheme. I am proud to be a member of that Scheme. In these circumstances and
having regard to the fact that like all members of the community, we bring to our work our
own life experiences and common sense, the issue of mental illness for not only legal
practitioners but the community is one of much importance.

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[1] The author acknowledges the assistance of Dr Olav Nielssen and Dr Andrew Ellis, Forensic
Psychiatrists, the Black Dog Institute and the Law Society of NSW

 

 

 

Council of the New South Wales Bar Association v Rollinson [2022] NSWSC 407

In this matter, Greg Walsh acted on a pro bono basis for Mr Michael Rollinson, Barrister, who had been the subject of two declarations that he was in contempt of Court and that he be punished for the contempt.

The Applicant was the Council of the NSW Bar Association (“the Bar Council”). Mr Rollinson pleaded guilty to each count of contempt. His Honour Beech-Jones CJ at CL set out the evidence in support of those breaches at [11] – [62].

His Honour approached the sentencing of Mr Rollinson on the basis that he had not previously breached the law or any relevant norm or professional standard. Further, that although his practice had struggled, were it not for his conduct since July 2021, it was likely that he would have continued with the support of solicitors and professional colleagues. However, his Honour regarded “it as an almost virtual certainty that either by way of being refused a Practising Certificate or removed from the Roll of Practitioners (or both), Mr Rollinson will not (lawfully) practice again.”

Beech-Jones CJ considered the Report of an experienced forensic psychiatrist, Dr Andrew Ellis, of 18 February 2022. Dr Ellis classified Mr Rollinson’s interpersonal isolation as schizoid personality disorder. This involved a pervasive pattern of detachment from social relationships and a restrictive range of expression of emotions beginning in early childhood.

The opinion of Dr Ellis gave rise to a real risk that Mr Rollinson’s “personality disorder, age and build would render him vulnerable to intimidation” in custody

His Honour set out the principles for punishment for contempt and ultimately determined that each of the contempts represented a serious challenge to the Court’s authority that was exacerbated by Rollinson’s status as an officer of the very Court he deliberately and repeatedly defied.

His Honour declared that Mr Rollinson is in contempt of the Court for the various breaches to which he pleaded guilty and ordered that a commitment to a correctional centre for a period of 9 months commencing on the date of his arrest be suspended on the condition that for a period of 3 years from today, 8 April 2022, he comply with Order 1 made by Wilson J on 16 August 2021.

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Al Haje v Elassaad [2021] NSWSC 1437

In this matter, Greg Walsh acted for the Plaintiff, Wisam Al Haje.

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Murphy v State of NSW [2021] NSWSC 927

In this matter, Greg Walsh acted for the Plaintiff,  Liam Murphy.

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MTH v Croft [2021] NSWSC 727

In this case, Greg Walsh acted for the plaintiff, MTH, in respect of proceedings commenced by Summons filed on 23 June 2020. The plaintiff sought relief including injunctions to restrain the defendants, Geoffrey and Sandra Croft for disposing of certain assets.

Adamson J heard the application for costs. Her Honour set out the factual and procedural background in respect of the costs at [3] – [17].

The Summons was filed in proceedings commenced by way of Statement of Claim on 16 April 2020. MTH claimed damages from the State of New South Wales and Mr Croft for physical and sexual assaults perpetrated against her by him between 1978 and 1979 whilst she was in the foster care of Mr and Mrs Croft. MTH was 16-years-of-age at the time she was a ward of the State.

The assaults were perpetrated against MTH at a property known as ‘Cleggswood’ in Uralla. This property was sold in 2013 for $ 3 million. Mr and Mrs Croft were registered proprietors as tenants in common in equal shares of two residential properties in Armidale, rural properties in Yorrowyck and Ebor, and another residential property in Brushgrove: [7].

In 2017, Mr Croft was arrested and charged with a number of counts of sexual and physical assault alleged to have been committed against the plaintiff. On 12 April 2019, Mr Croft transferred his share in the Brushgrove and Yorrowyck properties to Mrs Croft. On 15 May 2019, he transferred his share in the Ebor property to Mrs Croft; the consideration identified was “love and affection”: [8].

On 25 October 2019, Judge McLennan sentenced Mr Croft to an aggregate term of imprisonment of 22 years with a non-parole period of 10 years.

On 24 July 2020, Greg Walsh, the plaintiff’s solicitor, swore an affidavit in support of the application for freezing orders to which he annexed a draft statement of the plaintiff. A draft Summons was also annexed which sought relief against Mr and Mrs Croft pursuant to s37A(1) Conveyancing Act 1919 (NSW) which provides that transfers of property made with intent to defraud creditors, are voidable on the application of a person prejudiced by the transfer: [13].

On 27 July 2020, Campbell J made freezing orders to restrain Mr and Mrs Croft from dealing with their assets: MTH v Croft [2020] NSWSC 986.

On 4 December 2020, consent orders were made whereby Mrs Croft re-transferred to Mr Croft the interests which he had transferred to her in the Yarrowyck and Ebor properties.

Her Honour was satisfied that, had the proceedings been brought by Notice of Motion in the damages proceedings, the question would have arisen whether a costs order ought to be made in favour of either party and on what basis. Her Honour observed that the transfers from Mr Croft to Mrs Croft in mid-2019 for nil valuable consideration had the effect of diminishing the assets of Mr Croft which would otherwise have been available to meet a judgment in favour of the plaintiff.

Her Honour at [25] made a finding that the plaintiff’s prospects of success in the summons proceedings were high. In these circumstances, her Honour made an order that in the event that the plaintiff was successful in proceedings against Geoffrey Croft, the defendants in these proceedings are to pay the plaintiff’s costs of these proceedings.”


The judgement can be found at https://www.caselaw.nsw.gov.au/decision/17a2bc7bdd6fd259c6d4ead3

DVM v Children’s Guardian [2020] NSWCATAD 323

In this matter Greg Walsh appeared for the Applicant DVM who had worked as a primary school teacher for over 30 years. In 2015, the Applicant whilst the Deputy Principal of a primary school was the subject of allegations that he had touched students at the primary school inappropriately. At that time, the Applicant had a lengthy and distinguished career as a teacher and was highly regarded by his colleagues.

The Applicant was happily married and had 4 children.

The Applicant was not aware that he suffered from autism spectrum disorder (ASD). He and family members were aware of certain personality traits which ultimately were found to be consistent with that disorder.

A fellow teacher at the school had allegedly observed the Applicant talking to some students in the playground. The Applicant was a popular teacher and would supervise children during lunchtime. It was alleged that the Applicant had patted the children on their lower back or bottoms after speaking to them.

The principal of the primary school frequently attended the classrooms of all the teachers at the school. The Applicant taught a disabled child and there were always two special teachers in the classroom to assist in teaching and supervising that child. The Applicant would mark homework and conduct reading sessions with the children and in doing so sit at a desk. On occasions, some children impulsively jumped up on his lap and he would immediately place the child from his lap on to the floor. The evidence was that he had contacted a number of such children’s parents and disclosed to them what had happened and then asked them to reinforce to the child that they were not to do this. On each occasion when he contacted the child’s parents, no such further incident occurred.

The principal on a regular basis had observed how the Applicant had related to the children during the course of lessons and she noted that the children were very happy and had a good relationship with the Applicant.

A ‘no go and tell’ class was conducted by the teacher who allegedly observed the Applicant patting the two children in the playground. The class was a combined one and children were asked to write down in each other’s presence, any experiences or observation they had of someone touching them inappropriately. This had followed a lesson in which repeated representations had been made as to certain types of conduct which the teacher presenting the class regarded as being inappropriate.

Some of the children looked at other children’s notes and adopted what other children had said.

The teacher concerned spoke to the principal of the school, who contacted the Department of Education and in turn the Police. A Police task force was then created and a large number of children interviewed. The interviews were conduced in a manner which involved the use of leading and closed questions. Many of the children did not provide accounts consistent with any allegation of indecent assault.

The Applicant was arrested and charged with a large number of counts of indecent assault involving the touching of children on their lower back and bottoms and also on their breasts. The latter charges were in circumstances where the children concerned were very young, namely 10 and 11 years of age and had no breasts.

The Applicant was immediately removed from his school and eventually dismissed from his employment with the Department of Education.

Another significant feature of the case was that parents had been involved in perpetrating rumours in the township where the school was situated and the Applicant resided. One of the persons concerned had professional qualifications which had the effect of causing enormous prejudice to the Applicant.

One of the parents who had been involved in making unfounded representations acknowledged to the principal to the school that she should not have done so and when she spoke to her son, he quite clearly denied that the Applicant had ever touched him on the bottom or sat him on his lap whilst marking work.

The Applicant after his arrest and charging, was granted conditional bail. As a result of lack of communication on the part of his then legal practitioner and himself, the Applicant contacted the principal of the school to seek to obtain some information and documentation relating to the allegations against him. He was immediately arrested on the basis that he breached his bail and he was taken into custody and placed on remand at the notorious Goulburn Gaol. He was placed in a cell with another prisoner who had seriously assaulted apparently a paedophile. The Applicant had never been in custody (apart from his initial arrest) experienced a truly horrific ordeal. He was eventually granted further conditional bail, however he found his incarceration in such circumstances to be humiliating and extremely frightening.

The Applicant’s trial took place over a considerable period of time having regard to the necessity of 17 complainants having their evidence recorded and being subject to cross examination. An important feature of the evidence was that there was no evidence that the Applicant had in any way touched the children in any sexualised context.

The Trial Judge, Townsden J, said to the learned Crown Prosecutor:

HIS HONOUR — Right, smack on the bottom, go on, move on, that’s it. How does that at the criminal standard, perhaps on a social —perhaps in danger to go off course here — but how on a social setting does that lie with the concerns that we have in a community that teachers feel that they can ‘t even touch the students in a primary school. And that male teachers feel that they can ‘t be comfortable to even be a male teacher in a primary school. Are you aware of that social issue, Mr Crown? “

The learned Trial Judge was also provided with evidence both from experts on behalf of the prosecution and defence as to the Applicant suffering from the previously undiagnosed autism spectrum disorder. A trait of that disorder is that such persons are often very tactile and not aware of boundaries so far as physical touching is concerned. There was evidence that the Applicant quite frequently would pat children on the back of the head, shoulders, upper back and lower back.

His Honour was not satisfied that such conduct amounted to an indecent assault. See R v Harkin (1989) 38 A Crim R 296 at 301.

On 30 October 2017, Judge Townsden acquitted the Applicant in respect of each of the 17 counts of indecent assault against him.

An application for costs under the Costs in Criminal Cases Act 1967 was made on behalf of the Applicant and was granted by His Honour.

An application was made by the Applicant for a Working with Children Check Clearance to the Children’s Guardian. As the Applicant had been charged with criminal offences, the Children’s Guardian was required to undertake a risk assessment of him (Ss.14 and 15 Child Protection (Working with Children) Act 2012. The Children’s Guardian, after conducting the risk assessment, refused the Applicant’s Working with Children Check Clearance.

Greg Walsh represented the Applicant in proceedings heard by Senior Member S Leal and General Member S Davidson. See DVM v Children’s Guardian [2020] NSWCATAD 323

It was the Children’s Guardian’s position up until extremely late in the proceedings of rank opposition to the application for a Working with Children Check Clearance.

The Tribunal was required to determine whether the Applicant posed a real and appreciable risk to the safety of children and if he does not pose a real and appreciable risk to the safety of children, then to consider;

Whether a reasonable person would allow the Applicant to have direct and unsupervised contact with their children; and

Whether it is in the public interest to grant the Applicant a Working with Children Check Clearance. 

In determining whether the Applicant posed a real and appreciable risk to the safety of children, the Tribunal needed to consider:

Whether the Applicant inappropriately touched students who attended the school where the Applicant last taught.

Whether in light of his mild autism spectrum disorder, the Applicant has the ability to look after children in his care;

Whether the Applicant has gained insight into his behaviour.

The Tribunal also needed to take into account those matters under s. 13(1) of the Child Protection (Working with Children) Act.

The Tribunal, after considering a large body of evidence, was satisfied that the Applicant may have touched students on the bottom but it was not his intention to do so. It found “rather it was his intention to pat them on the lower back, generally as a gesture to send them on their way after having spoken to them.”

There was also evidence that in respect of a student that he lifted the student up by the waist to reach the top of the white board so the student could wipe it. He agreed that he would not do this now.

In the context of children being pulled or placed on to his lap, the Applicant gave evidence in respect of which the Tribunal was satisfied that some students had climbed onto this lap but he never encouraged them to do so and told them to get off and made them sit on the floor. This evidence was corroborated by a former principal.

The Tribunal considered at length, the evidence of a number of eminent experts, including Dr Peterson, Dr Chenoweth (Crown Expert), Dr Edwina Birch, Dr Olav Nielssen and Dr Adrian Keller.

The Tribunal considered carefully all of the statutory considerations and was not satisfied that the Applicant posed a risk to the safety of children. It found “having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the Applicant. Specifically, we are satisfied that the Applicant has skills and experience in the care and management of children, including children with a disability and that he has a particular expertise in drama and the creative arts and these are important skills for the education and development of children.”


The judgement can be found at https://www.caselaw.nsw.gov.au/decision/176832e7ca11e1b274332091

Judges, juries and prejudicial publicity: Lessons from empirical legal scholarship

Judges, juries and prejudicial publicity: Lessons from empirical legal scholarship – by Rebecca McEwen; John Eldridge

In April 2014, former ‘Hey Dad!’ star Robert Hughes stood trial in the NSW District Court charged with the commission of serious sexual offences. After the jury delivered a guilty verdict, Greg Walsh, Hughes’ lawyer, remarked that ‘having regard to the enormous extent and prejudicial nature of the publicity it was virtually impossible to get a fair trial’. Judge Zhara, who presided over the trial, refused an application by Hughes to have the jury discharged on the basis of this publicity.

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