Workplace relations has had centre stage in the popular press over the last few weeks.  This front page treatment has come about because of the imbroglio at  high-end retailer David Jones and the alleged sexual harassment by the former CEO of a junior staff member, Kristy Fraser-Kirk.  What has attracted the attention has been of the large claim for damages of $37 million. Also in focus has been her legal representatives, Harmer’s Workplace Lawyers.  Harmer’s was set up over 14 years ago when its principal Michael Harmer left the industrial law practice at Freehills and set up a firm dedicated to  workplace law.  Michael Harmer himself has been the subject of a recent in-depth article published in the Australian newspaper business magazine “The deal” in July.   Harmer’s is not your typical law firm.  Michael is an ascetic who eschews the trappings of wealth associated with founding and running  a  successful  firm .  He drives a thirteen year old station wagon and has generously given significant profits of the firm to charities, particular in Kenya and Zimbabwe.  As a way of getting ready for the day, Michael stands on his head and meditates (unlike a lot of other lawyers who prepare with a  short black and a Berocca).  The article’s description of Harmer’s firm  gives it a quasi-religious Zen-like feel  even suggesting its culture might be thought by some as  a “tad weird”.  Notwithstanding that, Harmer’s has been involved in many significant cases, including Christina Rich ats PriceWaterhouseCoopers (the largest sex discrimination claim in Australian history) and Gough & Gilmore Holdings v Caterpillar (the largest unfair contracts claim which ultimately proved unsuccessful).  However the irresistible rise of the firm has been checked by a major defection.This body blow has occurred with the departure of one of its leading  luminaries, Joydeep Hor. Joydeep  has recently set up a new law firm entitled “People and Culture Strategies”.  This innovative and unique name ( the title Joy Luck Club had already been taken by Amy Tan) gives a monicker to a firm which starts its life with many large corporate clients , such as Mars, Cochlear, Daikin, Schenker, Alphapharm, Fox Sports, Yum Restaurants and various public sector employers .Joydeep Hor must have a different approach to Michael Harmer and perhaps this difference  has led to the fissure in what had  been  one of the leading boutique workplace law firms in Australia.  In setting up this new style of  firm, it web site proclaims;

“PCS is about relationships.  It is our mission to provide the highest quality service, advice and training products to our clients nationally.  That can only be done when our clients trust us as their business partners.  We’re one of the few businesses (let alone law firms) that had some of the most prominent employers in Australia as our clients on our first day of business.  Those clients expect not only we will be across the necessary law, but that we will be accessible, commercial and have the necessary acumen to be able to deliver on the promise of actually being strategic.”

The movement at workplace relations firms has been happening for many years. Another example of which has occurred at the mid-tier national law firm Middletons. Its National Practice Group Leader Gerard Phillips ( himself formerly of  the over 100 year old Carroll & O’Dea, Sydney ),  has recently been on a buying spree to augment the shape and size of Middletons’ industrial law and safety  practice.  Gerard Phillips sees an evolutionary   development in the way workplace relations is practiced at its highest level in Australia.  He sees the large law firms as being focused on larger transactions with workplace relations being a mere adjunct for them.  This he says has been  brought about:

” Because the market in workplace is undergoing a fundamental change.People will pay for the right advice but these days they know that it is not only to be found in the mega firms …..the natural home for workplace relations and safety will be either boutiques or strong firms that are not in the top tier.”

Pursuing this aim, Middletons has recently retained Kathy Dalton in Melbourne from Herbert Geer, Duncan Fletcher in Perth from Mallesons and most recently have recruited the entire HWL Ebsworth team in Sydney of partners Bryan Belling, Seamus Burke and Alice DeBoos.  The Middletons’  workplace practice nationally now has 8 partners, and  almost 25 employed  solicitors.

An announcement described as ”not an easy or light one” has just been made by former Gadens IR partner Brian Williamson that he is leaving Workplace Law the firm he set up eight years ago. As at 16 th August Brian will now practice at Goldfield’s House ,Circular Quay as “WilliamsonLegal” specialising in legal services for employers.( I love words with a capital letter in the middle of them ….so L.A., so 90s)

On a different note, another aspect of movement in the workplace relations area on account of its multi-disciplinary approach, is that such practitioners are keenly and commonly sought out to become in-house counsel of large companies.  In this vein, Workplace Review notes that one of its general editors, Stephanie Vass has recently started a new career as Group General Counsel at Resimac, one of the country’s largest non-bank lenders.  This will be a far cry from her role as workplace relations partner at Piper Alderman .

These personnel movements and  IR solicitor firm re-organisations reflect the great changes from when I commenced legal practice over thirty years ago. A solicitor unless called to the Bar generally stayed with the one firm . Partners did not separate from the partnership until retirement.There were only a few recognised  specialist employment legal practices. Lunches were tax deductible , a golden age.

(Both Duncan Fletcher and Stephanie Vass are contributors to Workplace Review and the writer is Gerard Phillips’ brother)

Liability limited by a Scheme approved under Professional Standards Legislation

“This is a submission I have made to the NSW Bar Association’s current inquiry into the method of appointment of Senior Counsel being conducted by Roger Gyles AO QC.”

I am generally happy with the operation of the Senior Counsel Protocol. No system will satisfy everyone. However I believe it can be improved by simply changing the office’s title back to Queen’s Counsel and in a limited way extend the class of persons eligible for appointment beyond that of practising advocates.

The ancient office of Queen’s Counsel was changed by decision of the then Premier of New South Wales, the Honourable John Fahey.   In November 1992 it was announced that his Government would no longer make recommendations for the appointment of Queen’s Counsel. The Bar and the legal profession were ambushed by this change.  The announcement  was  a surprise, not only to the New South Wales Bar but to others who had been asked  to comment upon a legal profession  Issues Paper, included in which was whether the office of Queen’s Counsel should be abolished.

The last time Queen’s Counsel were appointed in New South Wales by the Governor-in-Council was therefore in 1992.  The history of this change is well set out in the Personalia column at (1994) Australian Law Journal, Volume 68 at 470 written by Geoff Lindsay.  The article contains the speeches of welcome made to the new Senior Counsel in 1993 when the system of appointment had been taken over by the Bar Association. 

The then Chief Justice Murray Gleeson’s address traced the historical role of the appointment of Queen’s Counsel by the Government.  However, he was circumspect in what he said about the change. However, in his address to the new Senior Counsel a few days later the then President of the Court of Appeal, Mr Justice Kirby was not so muted, inter alia he said,

“I hope that the Executive Government of the State will reconsider that decision, if such it be.  The Premier is a thoughtful and intelligent man.  He is himself a member of the legal profession.  I would hope that he would reflect again upon the decision.  It was announced on the very day on which I, and other Judges, received a discussion paper issued by the Attorney General, which raised amongst others, a question for our comment as to whether the office of Queen’s Counsel should be abolished.  If the Government, Parliament and people are still interested in receiving the opinions of the Judges on that matter, such opinions will in due course be expressed.  It was, to say the least, a little surprising that, on the very day of receipt of the consultation paper, a decision was unilaterally announced.  At the least, it is undesirable that such a decision should be made unilaterally for this State only.  It disadvantages those counsel who have a natural expectation that they would move through the profession to the rank which the new appointees before us have now attained. 

There is no doubt that an increased demand will arise for Australian legal services in Asia and elsewhere in the years ahead.  The appointment to the rank of Queen’s Counsel is an important and professionally valuable step in the life of a barrister.  Appointment to a new rank, differently styled and differently chosen, of senior counsel would not carry the same respect, at least until it earned it.  That would take time.”

What has happened since 1993 is that in the public mind and in the minds of the media there are two tiers or ranks of senior counsel.  Those who still retain the rank of Queen’s Counsel and those appointed as Senior Counsel.  The two species of senior counsel at times are confused, particularly by sub-editors in newspapers.   More confusing, if not misleading, is the comparatively new usage, in some law firms, of a classification of solicitor called “Special Counsel”.  I’m not quite sure the difference between the titles of “General Counsel” or “Special Counsel” as used in law firms, although that of “Special Counsel” appears of more recent origin.  I have even seen it being referred to as “SC” in advertisements for positions in some firms.

My submission to revert to the title of Queen’s Counsel is timely.   In June last year, the Government of New Zealand restored the title of Queen’s Counsel.   The NZ Attorney General Christopher Finlayson gave reasons for its restoration;

“The title Queen’s Counsel is instantly recognised as providing a certain standard of legal advice both among the New Zealand public and internationally.”

The previous NZ Government had created the office of Senior Counsel in 2008 when seven persons were appointed to it. Those seven SCs were given the option of adopting the title of Queen’s Counsel or remaining Senior Counsel. If the title of Queen’s Counsel is restored in New South Wales a similar option ought be granted to those SCs appointed since 1993 to remain as they are or to take the title of QC. I know of no QC appointed in this state prior to 1993 who gave up the title of QC to become a SC. I therefore suspect that most of those appointed SC will seek the change to QC.

The timing of the John Fahey’s announcement in November 1992 perhaps was him expressing his support for the then topical question of whether Australia ought become a republic. The overwhelming NO result of the referendum of 1999 on that issue should have for a time resolved such matters. I believe that whilst this country remains a constitutional monarchy the 1992 change from the QC post-nominal was petty, undemocratic and unnecessary.    The first Queen’s Counsel appointed in New South Wales was John Hubert Plunkett who came from Ireland and was a Roman Catholic at a time when members of that religion were perceived to be mistreated by the Protestant ascendancy.  It is a shame if John Fahey’s antipodean Fenianism was a pretext to the decline of this ancient office.

It also might be time to consider whether the Bar itself should extend the class of people who might be appointed to the rank of senior counsel beyond those practising advocates and members of the Bar Association.  Perhaps the Bar Council each year should allocate to itself the right to select perhaps  two  or three  lawyers of  eminence, whether  in either  the government service as Parliamentary Counsel,  the solicitors’  branch  or  from academia for selection.  This accords with what others have suggested that the evolution of the title of senior counsel might be.   It is useful to consider the comments made by Justice Kirby at (1994) 68 ALJ 470 at 473 and also those by the celebrated legal historian J M Bennett in his article of “Silks and Sergeants” (1978) 52 ALJ 264 at 273;

“At present it is too much the “closed shop” of advocates.  The English practice of conferring silk on barristers whose contributions to the law have been made as members of universities is, with only one or two exceptions, not followed here, nor, with exception of some Parliamentary Counsel, is the practice of so recognising barristers who hold high public offices, literally in the service of the Crown, or who do not appear in court.  It would accord with legal evolution that the office be broadened in scope so that it may give a more balanced reflection of legal eminence amongst those having the qualification of a barrister.”

The Bar, the wider legal profession and our society were peremptorily and unfairly denied from having this debate in 1992. It is time to have it now.

On 13 February 2008, Julia Gillard, the Minister for Employment and Workplace Relations, introduced into Parliament, the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008. Attached to the introduction of the Bill is a 98-page Explanatory Memorandum. This Bill introduces the first tranche of amendments to the Workplace Relations Act. Further amendments are foreshadowed for later in the year.

The “Forward with Fairness” amendment to the Workplace Relations Act is not totally a “Back to the Future” amendment in that it repeals only a few aspects of the Work Choices legislation. This Bill does not represent a return to the Hawke/Keating era of industrial regulation.

The Bill largely fulfils the ALP’s promises to abolish Australian Workplace Agreements (AWAs), although does so in a measured, tiered manner save for the Federal Public Service in which AWAs will be abolished immediately. However, AWAs continue in one particular, albeit circuitous manner, for those who earn over $100,000 per annum. Such employees will be free to agree to their own pay and conditions without reference to awards. This is said to provide “greater flexibility for common law agreements which have previously been required to comply with all award provisions, no matter how highly paid the employee”.

The Opposition, when met with this Bill, dithered somewhat on the abolition of AWAs. However, at the time of writing it had expressed its support for the abolition of AWAs when the Bill reaches the Senate. One key aspect in which the Bill builds upon the Work Choices legislation is that it confirms the centralisation of workplace relations. No doubt as a result of the gift the former Coalition Government delivered of a national industrial relations system, the Federal Government will not permit a return to a Federal/State industrial relations system despite the wish for that to happen by some state Labor Governments.

As to what happens in the long term regarding the State regulation of industrial relations, particularly in New South Wales, Queensland and Western Australia, is a matter left unsaid in this Bill. These three Labor states have long had profound and vibrant State-based systems, which although not killed off by Work Choices, have been damaged.

It will clearly be a debate for the future as to whether the State industrial relations systems continue, or whether they are ultimately, by consent of those States, subsumed into one national unitary system.

The Bill says nothing about another aspect of the election campaign as unfair dismissals and the current unfair dismissal rules will, in the foreseeable future, remain in place.

Among the many changes to AWAs, it is to be noted that existing AWAs that are made and lodged before the date of the commencement of the Bill, will continue to operate until terminated or replaced. No AWAs will be entered into by the Australian Public Service sector, and so that there is less diversity of employment conditions in any particular workplace, the Bill introduces a new form of individual industrial agreement called an Individual Transitional Employment Agreement (ITEA), which will exist side by side with AWAs until the latter expire.

The previous so-called “fairness test” will be replaced by a “no disadvantage test”, which will be designed to ensure that the overall terms and conditions of an employee whose employment is governed by an ITEA will not be below the standard set by an applicable collective agreement. Other matters such as award modernisation and National Employment Standards will replace the current standard when the new workplace relations system comes into effect in 2010.

As to what the future will be, what is clear is that workplace relations will continue to be an area of uncertainty and will require all employers, particularly those with large workforces, to closely scrutinise this first attempted amendment. Workplace relations legislation has grown in size and complexity over the years. The future regulation will continue to be in a state of flux, depending upon what ultimate changes are negotiated within the Parliament and, more importantly, what changes are agreed to by the Federal Government and New South Wales, Queensland and Western Australia.

On the day after the “Forward with Fairness” Bill was introduced, members of the Labor Caucus endorsed Prime Minister Rudd’s symbolic 12-month wage freeze. No doubt most employees will hope this wage freeze is not a precedent to be followed for the rest of the workforce.

Contributed by Jeffrey Phillips SC of Denman Chambers, February 2008. Originally published as Bulletin 3 to National Workplace Relations.

Jeffrey Phillips SC is a member of the Thomson Reuters National Workplace Relations Editorial Board.

Last week I had an at times boisterous dinner with two colleagues with whom I had started at the Bar in 1982. Back when we were readers, it was inconceivable to imagine 25 years into the future. In that period, we have conducted busy, diverse practices. The life of a barrister is both interesting and rewarding but, at times, exhausting, stressful and uncertain. Professionally and personally, there have been good and bad times. As a quarter of a century veteran, what advice can I give to someone commencing this career so as to maximise the good and minimise the bad times?

There are mo universal rules that make a barrister successful. One can mention the usual attributes: intelligence, industry, personality and connections. Perhaps, a good versus bad career could be compared by way of analogy to what Tolstoy said in Anna Karenina concerning families:

          “All unhappy families resemble one another, but each unhappy family is unhappy in its own way.”

Barristers happy in their career are an example to us, those unhappy are a warning.

As a warning to those embarking upon practice brimming with confidence and expectation, evident on the faces at admission ceremonies, it is instructive to consider those for whom it has all gone wrong.

WARNING No 1

The great shame and tragedy for the Bar in recent years has been notorious difficulties some have had with the Australian Taxation Office. The explanations by two now defrocked QCs, spoke of disorganisation and, in the face of mounting and annual problems, despairing immobilism. One, John Cummins, said:

          “I kept as far away from the Income Tax Act as far as possible in my thoughts… All I did was have a few more drinks and blotted it from my mind.”

Another, Clarrie Stephens said he:

          “… became too dependent on non-performing accountants from the early 1980s. … Any reference to ‘tax’ or ‘accountants’ in our house had become a great source of aggravation and tension.”

Many other barristers had serially and seriously failed to meet their taxation obligations. Of one, Justice Roddy Meagher, in considering the myriad excuses presented in mitigation, said:

          “All these facts together to not derogate from the fact that non-filing of tax returns is incompatible with the degree of integrity which the public has the right to expect of a barrister.”

Leaving aside those who might have used the non-filing of tax returns as a deliberate ploy to evade their obligations, one can understand, though not approve of, those whose negligence led them to denial of the problem. As sole traders with uneven cash flow, trying to keep up appearances and lifestyle, looking after others’ problems, it was too easy not to worry about the ATO. As a debtor, the ATO had been somewhat glacial, that is, ominous but slow moving in the collection of its debts. (It took the revenue authorities 40 years to catch up with John Cummins who had never failed a tax return.)

As a young barrister wishing less stress, it is trite to say that one must conduct one’s practice like a business. That is, one needs to devote time and money to its financial administration and credit control. The late payment of fees is an endemic problem at all levels of practice. As an extreme example, only last week I received the final payment for a matter conducted in 1999! Thank God for small mercies, however, not the way to run a business. Keeping one’s books in order with all the relevant accounts and invoices might be unexciting, but is essential. Contacting solicitors who are slow in paying is distasteful and perhaps self-defeating, but necessary. Contingency fees, particularly in these days of tort reform, and pro bono work, need to be kept in perspective. The stark warning these days being, that no matter how capable, understanding or public spirited one is as a counsel, if one’s tax is not paid, you will be disciplined and could be struck off.

WARNING No 2

The fact that this work is mainly conducted in public, in an adversarial context, presents its own kind of anxiety. Recognising the stress engendered by the work, dealing with it and engaging in reduction strategies, are pivotal for a happy life. Not to do so can have debilitating and sometime devastating consequences. Harmful self-medication strategies, particularly with alcohol, may not be the answer. A more extreme case of a destructive coping strategy was that of the recent death of the prominent Melbourne QC, Peter Hayes. He was found dead in an Adelaide hotel room in circumstance suggestive of a drug of dependence overdose. He had had a brilliant career, although, in recent years, it was said that his personal life had suffered which, in turn, led to difficulties at work. It was said that he lived under significant pressure before his death. A colleague, David Galbally QC, in the press in May of this year, said of him:

          “He had mood swings when he was practising, he could be aggressive one minute and positively charming the next. … He lived under enormous pressure as we all do as advocates and I don’t think members of the community understand the pressure we live under when representing people.”

Another extreme example of how one’s emotional life can lead to ruin, presented itself with the conviction of a former Deputy Senior Crown Prosecutor, Patrick Power SC, who was gaoled for downloading child pornography. In his defence, it was said before the New South Wales District Court that he had been “diagnosed with a treatment-resistant depression spectrum disorder” and he was “powerless to stop his compulsive behaviour”. It was also said that “along with the pressure of prosecuting cases such as pack rapes and murders”.

These two sad examples are at one end of the spectrum of emotional problems contributed to by a busy life at the Bar. The NSW Bar Association has recently recognised the problem by instituting a confidential counselling service called Bar Care. Its aim is to assist, in a confidential way, members of the Bar and their immediate members who have personal problems which may be interfering with work and my family life.

However, one should, at the outset, adopt strategies which are designed to avoid and minimise the anxiety which may otherwise become either acute or chronic. Examples of such strategies might  be adjusting the so-called work/life balance, such as taking sufficient breaks between cases, making sure holidays are taken, and trying to keep in touch with one’s family by minimising out-of-hour and weekend work. Further, one ought adopt consistent management plans of ensuring that one’s time at work is efficiently spent by keeping up-to-date with work, returning phone calls, and not taking on too much work, together with recognising when work offered is outside one’s capacity and experience, and not being afraid to ask for additional help. It is little wonder , therefore, that some people are spending lare nights or weekends, just catching up with the minutiae of work.

WARNING No 3

When I first came to the Bar, with in a short time one of the difficulties of life was that there was too much work. In the eighties, there was an abundance of work, particularly in the personal injury area, and it was difficult for young barristers to get it all done. Some barristers in those days had so much work they developed a reputation for being briefed and wither not turning up to conduct cases because they were busy elsewhere, or turning up late or under prepared. In recent times, with various so-called reforms of tort law which have led to a lessening of litigation, the reverse is the problem. Although there is a great number of new specialist tribunals, in an overall sense it is apparent that there us less work to deal with by a greater number of barristers.

A telling example of this problem occurred a couple of years ago when a barrister was struck off for not overcharging a particular client, but for over servicing. Mr Amor-Smith had had 30 years at the Bar. It was apparent from his accounts that his practice had declined. In this particular case, the subject of the complaint, he appeared to have devoted his full attention to it so much so that it almost looked like a job. The allegations against him were not just overservicing, but also that he charged his professional rate for a lot of work which was of a clerical nature. He had charged out at the higher rate for time he had spent photocopying. Even though this was only an isolated matter for this barrister, it was considered to be reprehensible that as an example to others he had his name removed from the roll of practitioners, notwithstanding his otherwise good reputation. It was said that:

          “What occurred was that the barrister had failed to respond satisfactorily to the challenges of a single brief, which raised particular difficulties and was, moreover not properly defined or supervised by his instructing solicitor. In consequence, he developed an obsessive concern to attend meticulously to every detail of the issues raised, with the consequence that he devoted a grossly inordinate time to the brief.”

This presents itself as a warning that when people are underemployed, they are not to expand the billing day by devoting more attention to a brief that what it reasonably requires. It could particularly present itself as a problem for a new barrister, who has insufficient work, to develop an obsession with one particular brief which could have too much time devoted to it and which consequently could amount to professional misconduct. In every matter one needs to make a reasonable assessment in one’s fee disclosure as to what time is required in order to avoid an allegation of overservicing.

In Enemies of Promise, the literary critic Cyril Connolly devoted a book in which he listed the obstacles which might bring a promising writer down. These thoughts identify a few which might bring a barrister unstuck, unfortunately there are many more. As counsel, I would rather be an example than a warning.

JEFFREY PHILLIPS SC

Denman Chambers

On 16 May 2006, the High Court handed down a decision which further explains the notion of vicarious liability. Vicarious liability arises when the actions of one can be made the actions of another. The court delivered a majority judgment of their Honours Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ with a lengthy plangent dissent from Justice Kirby.

The Fridge Door

The case involved a Mrs Sweeney who went to a Pymble convenience store, within a service station, to buy a carton of milk. When she opened the door of the refrigerator, the door came off and hit her on the head. Boylan Nominees own the refrigerator; they had leased it to Australian Co-operative Foods Limited, who placed it in the service station which was run by the Patels pursuant to a lease.

Boylan, under the terms of the lease agreement, agreed to service and maintain the refrigerator. Boylan subcontracted the maintenance of the refrigerator to a Mr Nick Comninos. Mr Comninos was an independent contractor. Mr Comninos inexpertly “fixed” the door about which complaints had been made. Unfortunately, his repair was not efficacious and the hapless Mrs Sweeney was injured when she opened the door and reached forward for her carton of milk.

All Defendants sued except the One who did it

Mrs Sweeney’s lawyers sued a range of defendants, but did not sue Mr Nick Comninos, the repairer of the door.

It was argued that Boylan Nominees, having the responsibility to maintain the refrigerator, was vicariously liable for Mr Comninos’ inexpert repair of the door.

The trial judge had held that Boylan Nominees was vicariously liable for Comninos’ negligence. That decision was overturned by the New South Wales Court of Appeal. It was from the decision of the Court of Appeal that Mrs Sweeney obtained special leave to the High Court.

The Majority

The majority noted the real distinction the common law had made between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable). The majority stated that it was clear that the bare fact that a repairer’s actions were intended to benefit the owner of the machine, or were undertaken to advance some purpose for the owner, does not suffice to demonstrate that the owner is vicariously liable for the conduct of the repairer. The fact that a repairer might be seen to be, or be described as, the representative, delegate or agent of the owner obscured the need to examine exactly the relationship between the various players.

Whose Business is it?

The proper analysis is to determine whether the repairer was acting within the organisation of the principal, or whether he was acting in an independent capacity. To put it another way, was the repairer part and parcel of the owner’s business, or was he somehow an independent agent who was responsible entirely for his own actions. The majority contrasted the facts in this case to those in a case involving bicycle couriers, Hollis v Vabu [2001] HCA 44. In Hollis the bicycle couriers were found to be employees of a company, whereas in this case the majority found that the repairer was not an employee of Boylan. The repairer supplied his own tools and equipment and brought his own skills to bear upon the work and was not under the same control as the bicycle couriers were in Hollis.

Acting as Principal not Agent

The repairer, importantly, was not presented to the public as an emanation of the respondent. He did not wear Boylan’s uniform, nor did his truck bear the livery of Boylan. What he did was not as an employee of the respondent but as a principal pursuing his own business. This was to be the determinative point in the majority decision.

Slaves and Animals

Justice Kirby, on the other hand, noted that the origins of vicarious liability came from the Roman law concepts of responsibility for the actions of slaves and animals. Justice Kirby considered the facts to be that Boylan Nominees held out the repairer to be their repairer and, as a consequence of that, should be responsible for his actions. Justice Kirby dealt with policy considerations concerning the changing nature of work in the Australian community which has led to greater use of contractors. This trend showed the decision of allocating liability for a plaintiff such as Mrs Sweeney to be a matter of paramount concern.

Changing Nature of Work

His Honour noted that on account of the proliferation of independent contracts in place of employment, cases will arise where the contractor is not insured or cannot be identified, or it cannot be established which of the several contractors was responsible for causing the damage. This may mean that the law of vicarious liability, strictly enforced, may make the difference between recovery and non-recovery.

Trial by Ambush Deplored

As a parting shot, his Honour recorded with a tone of melancholy that the true defence in relation to vicarious liability, and when it was first raised before the trial judge, was an example of trial by ambush. He condemned the practice that a litigant could store up an unpleasant surprise for an opponent and only reveal it at the last minute in a trial. He described it as “… not a proud moment in the administration of justice”. Only when judges exact a price, such as in costs, will unpleasant evidentiary surprises be removed from our culture and practice, he said.

A Warning

This case is a clear warning to litigants not to make assumptions in relation to the actions of one being sheeted home to another, particularly one who may have a deep pocket or may have adequate insurance. It places an enormous onus on plaintiff’s lawyers to make sure they get the right person as a defendant in proceedings such as this. Equally, it is important that defendants are properly advised by use of cross-claims to claim against those who may be directly responsible for a particular act of negligence.