Justice William Charles Crockett AO - Victorian Bar

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witness lies in the witness box or the lawyerthreatens or insults the court.If it is the lawyer who publishes thelibel, it makes no difference for thatpart of our law if the lawyer does soexpressly on instructions. That assertion,if sustained, may be critical on an issue ofqualified privilege, but it has no bearingon whether the lawyer is liable for publication.Defamation is not a part of the lawthat you want to flirt with.There is another civil wrong that maybe relevant where people of unequalpower are trying to reach a bargain. Thetort of intimidation is not often invoked,and when it is, it is mainly invoked in anindustrial dispute that has turned verynasty. It can be constituted by the use ofunlawful threats against a party to inducethat party to act against their interests.Take a bad case. On one side there is animpoverished cripple of little understandingand even less capacity. On the otherside there is a publicly listed companywith a team of lawyers. The lead lawyerlooks the victim straight in the eye andsays that although this little case doesnot register on their radar, they have themeans and the motivation to run the casefor weeks and, if necessary, to take it onsuccessive appeals. Therefore, they say,the victim should take their offer, whichis the only one they will ever make, eventhough the lawyer for the victim saysthat offer is inadequate to the point ofbeing derisory. That is intimidation. If thethreats are unlawful, and there is damage,there may be an actionable wrong.So far as I know, this tort has notbeen invoked in the context of settlementdiscussions. If the intimidation hasfailed, there may be no real damage. If ithas worked, the victim will not often bemotivated to do something about it. Thelitigant who kicks down the door may bethe one who was psychiatrically down atthe time of settlement and under-represented,but has recovered and is nowready and able to complain. Similar considerationsmay arise when a party seeksto set aside a settlement on the grounds ofundue influence.Our law of contract provides thatwhere people have agreed to seek to procurea result, there is an implied term ofthe agreement that each side will do whatit can to enable the other side to get thebenefit of the bargain. If therefore partiesto a dispute enter into a legally bindingagreement to seek to resolve the disputeby a process of negotiation, the law willimply a term of that agreement that theywill negotiate in good faith.42As often as not, it is plain enough thatone party does not wish to negotiate at all,let alone in good faith, and there is notmuch point in mumbling about refinedlegal obligations. But reasonable peoplewith decent lawyers occasionally benefitfrom being reminded of the necessarybasis of any successful negotiation. Thatis why, perhaps, you tend to find that thepeople who first refer to good faith may bethe last to show any evidence of observingit. Ultimately the whole process restson agreement, and without at least somegoodwill, if not good faith, you will notconvert the agreement to negotiate intoan agreement to settle.The Americans have a useful applicationof the doctrine of good faith. They sayit is to be implied in contracts where theparties are not equal. Key examples forthe Americans are insurance and employment.They then say that because the obligationarises by operation of law, breach ofit is a civil wrong, and not just a breach ofcontract. Because there has been found tobe a tort, the guilty party can be punishedwith exemplary damages for abusing theirpower and throwing their weight around.You might think that this would be a salutaryremedy to have in Australia. It wouldbe interesting to see if any parliament inAustralia would be prepared to introducesuch a law.Commercial law relating to negotiationsconsists mainly of statutoryadditions to the common law of contract.State and federal laws prohibit misleadingand deceptive conduct. Some provisionsare criminal as well as civil. The conductcomplained of has to occur in trade andcommerce (a limitation that was first putthere for constitutional reasons).Whether negotiations in a mediationoccur in trade or commerce will dependon the context. A court ordered mediationwith lawyers on each side may beone thing. An attempt to resolve, beforelitigation, a dispute between shareholdersor partners, or under an insurancepolicy, or about the sale of a painting,where lawyers happen to be present,would be something else. It is very common,and more than a little worrying, inthe mediation of commercial disputes,for the lawyers far to outnumber the feepaying litigants. You get more jockeys atthe barrier than horses. If you wish to saythat lawyers engaged in trying to resolve acommercial dispute are carrying on theirprofession rather than taking part in tradeor commerce — are we so old-fashionedthat we have to pretend that there is anexclusive dichotomy? — then the relevantmediation might have a more sterile airthan its sponsors would prefer. What doyou say to lawyers who turn up and say,“We are here to be commercial”? Why arethey there at all?The significance of being able to makea claim for misleading conduct is that if itis not available the party aggrieved hasto consider an action for fraud. Fraud issomething which it is nasty to allege anddifficult to prove. The introduction of therelevant trade practices laws removed thetemptation to make such a claim when itshould not have been made in the past.There is also a difference in this partof the law from the law of libel in a lawyerexpressly making a statement on the basisof instructions. With the law of defamation,”A said B murdered C” translatesinto “B murdered C”. But this is not thecase for the purpose of establishing a misrepresentationfor misleading conduct. Inthe context of negotiations some assertionsmade by lawyers might implicitlybe made, and only made, on instructions,but some lawyers get so close to identifyingwith their clients that this might be adangerous assumption.The function of equity is to remind usthat lawyers and other representativesof the parties in dispute are in it for theparties, and not for themselves. If theirown sense of vainglory conflicts with theirduty, they must deal with it immediately.We have all had to sit through grandstandingby lawyers or posturing by executiveswhere this very basic rule gets forgotten.We have all had to watch in action legendarynay-sayers who are heroic with otherpeople’s money behind them and whoappear to enjoy playing with the lives ofothers. They remind you of the lament ofGloucester to the Old Man on the heath:As flies to wanton boys, are we to the gods.They kill us for their sport.The notions of undue influence andclean hands may also be invoked inresponse to an endeavour to enforce asettlement procured unconscionably. In asufficiently dire case, a party can move toset aside an agreement obtained by conductthat is unconscientious (equity) orunconscionable (limited under statute).To come back to the criminal law, wedescribe as contempt of court the commonlaw crime of interfering with thecourse of justice. That offence may beconstituted by putting undue pressureon a litigant to deter them from pursuingtheir legal rights. Bullying a litigant intoaccepting a settlement that is manifestly
unfair would be a clear instance of thiscrime. If the threats or pressure broughtagainst the victim as litigant amount tocontempt of court, this head of unlawfulnesscould supply the link to enable aclaim for damages to be made for the tortof intimidation.Now, this dry recital of basic legalpropositions will be unnecessary for allbut a tiny number of negotiations in whichwe as lawyers are engaged. As I remarked,the misbehaviour under discussion isdealt with by reference to considerationsof honesty and courtesy. If you hear an actof bullying described as an animal act, itis because courtesy is what separates usfrom animals.But you do sometimes get an impressionthat some people — parties or lawyers— think that they may be operatingin a zone where the Queen’s writ does notrun, a cone not of silence but of lawlessness.It is as if they are trading on thevery proper and necessary reluctance oflawyers, including judges, to pull back theveil from the negotiation and mediationprocess. Mediation may have been damagedby being assimilated into the courtprocess, but one way to kill it would be toopen it up for inquiry in court or before acommittee of professional ethics.Yet a noticeable tendency remains forone side to play the man. It is usually thebigger side and it frequently looks likethey have chosen their mark. This is aform of bullying and it is sickening. I amtold by leaders of the common law Bar,whose opinion I value and whose judgmentI trust, that they now think it is goodpractice for lawyers acting for a plaintiffin claims involving personal injuries to gointo the opening session of a mediationwithout their client for fear of exposingtheir client to intimidation by the otherside.This is very worrying indeed. Somelawyers are, as a matter of course, not preparedto take their clients into a meetingwith the other side because they do nottrust the lawyers for the other side to beable to control their own clients and havethem behave properly. (These people willusually be representing professional litigants.)A lawyer who said that in a commercialcontext at the other end of townwould be regarded as meshugga.If it is the lawyer who is engaged in themisbehaviour, and if the mediation is onethat has been ordered by a court, you havean officer of the court acting in a mannercalculated to interfere with or abuse aprocess ordered by the court. For all Iknow, some judges may take the view thatsuch misconduct might of itself constitutethe criminal offence of interfering with thecourse of justice.However that may be, the professionplainly needs to get its act together.You usually find that it is easier to catchbullies than liars. And in the end, MajorStrasser did have the courtesy to getshot. Or, if you prefer your allusions frommore remote age, shortly before Romewas sacked, it sent out two ambassadorsto negotiate with the Goths. They didso, Gibbon said, “perhaps in a more loftystyle than became their abject condition.”When they sought to talk down to Alaricthe Goth, he replied, “The thicker thehay, the easier it is to mow”, and laughedout loud.Conference Updates1–7 April 2007, (pre Easter Week)Cervinia Italy/Zermatt, Switzerland(The Matterhorn) — Europe OceaniaLegal Conference.9–16 April 2007, (post Easter week)Venice/Verona, Italy — Pan EuropePacific Legal Conference.1–4 July 2007, New York, USA— USA Pacific Legal conference (Will bescheduled to begin just after the 2007Australian Bar Association conference inChicago).6–13 July 2007, Lake Como, Italy— Europe Asia Legal conference.18–24 July 2007, St Petersburg,Russia — East West Legal Conference.12–19 August 2007, (held annually)Perisher Blue, NSW — AustralasianLegal Conference.15–21 September 2007, Kos, Greece— Kos 2007, presented by the GreekConference.21–27 September 2007, Taormina(Sicily), Italy — Pan Europe Asia LegalConference29 September–6 October 2007, (heldannually) Heron Island, Great BarrierReef — Pacific Rim Legal Conference.28 December 2007–3 January 2008,Khyber Pass, Peshawar Pakistan— Indus Pacific Legal Conference.7–14 January 2008, (held annually)Cortina D’Ampezzo, Italy — EuropePacific Legal Conference.17–24 January 2008, St Petersburg,Russia — East West Legal Conference.29 June–5 July 2008, Positano, Italy— Europe Asia Legal conference (indicativedates).July 2009, Lipari, Sicily, Italy —Europe Asia Legal conference.July 2009, Stratford-upon-Avon& Oxford — Britain Pacific LegalConference (dates to coincide with thefirst cricket test Australia–England).43
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Page 25 and 26: stice Frank Hortin Callawayhe had b
Page 27 and 28: Notes1. Trade Practices Commission
Page 29 and 30: e Callawayfundamental to our freedo
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Page 33 and 34: show that he ought not to have been
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Page 39 and 40: AN UNRESOLVED QUESTIONA tantalising
Page 41: News and ViewsTalking With Liars an
Page 45 and 46: Senior Counsel in Victoriasuitabili
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Page 49 and 50: The Archbishopof Melbourne TheMost
Page 51 and 52: The Most Reverend Dr Philip Freiera
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Page 57 and 58: George Golvan QCVivien Lewenberg.Ly
Page 59 and 60: News and ViewsBuddhist ObservanceTh
Page 61 and 62: unny Laneway TraditionPaul Lacava S
Page 63 and 64: News and Viewsgiven much time to en
Page 65 and 66: Judge Judith Cohen, Justice Rosemar
Page 67 and 68: any American men speaking up whenAr
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Page 71 and 72: efuse to tell him why. They argue t
Page 73 and 74: Santa arrives in his Porsche.Santa
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Justice William Charles Crockett AO - Victorian Bar

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