Lawyers squirming in the box
Around The Firms • Wednesday, March 26, 2014 No flies on Royal Commissioner Peter McClellan ... Searing examination of Catholic Church lawyers ... The Ellis case - defence at any cost ... Litigation and ethics ... Telling transcript ... The Cardinal regrets
Pell: "I regret that"
We've had two days of Cardinal Pell's morally bereft shilly-shallying at the Royal Commission into Institutional Responses to Child Sex Abuse.
The focus has been on the case of John Ellis, a partner at Baker & McKenzie, who unsuccessfully sued the church.
In 2007 the NSW Court of Appeal said that the church's assets are held in property trusts and are protected from damages claims arising from sexual abuse by the clergy.
In a slithering performance Pell told the commission that his lawyers at Corrs Chambers Westgarth had done "nothing inappropriate" in the case.
The church spent over $1.5 million defending Ellis' claim. The plaintiff initially sought $100,000 from the church, but later that was increased to $750,000.
Pell's instructions to Corrs were to defend the case "vigorously ... strenuously". Ellis was subjected to four-days of cross-examination disputing that he had been abused by a priest, even though the church's own assessment of the complaint found that it was "arguable beyond a reasonable doubt".
Asked by counsel assisting Gail Furness whether, in these circumstances, the intense cross-examination had been appropriate, the Cardinal said:
"I regret that."
Furness: "Only regret it, Cardinal?"
Pell: "What else could I say? It was wrong that it went to such an extent. I was told it was a legally proper tactic, strategy."
The church's lawyers at Corrs were Paul McCann and John Dalzell (now at Gadens as a partner).
On the Corrs website McCann is described by Sydney archdiocese's business manager, Danny Casey in these terms:
"What sets Paul McCann apart from other lawyers is his willingness to commit to his clients commercially and his client relationship management performance. Responsiveness, reliability, accountability, accessibility, commerciality, continuity – Paul has consistently hit the mark time and time again."
McCann has also been Gina Rinehart's lawyer in her long running trust dispute with her children.
The Gadens' website says that prior to becoming a lawyer, Dalzell was a Royal Marines commando and holds a first class honours degree in physiotherapy.
* * *
McClelland: probing the ethics of the Corrs' boys
Justice McClelland was unremitting in his examination of these solicitors and in no mood for their self-justification.
McCann appeared before the commission on March 18 and was grilled on the church's decision to contest Ellis' application for an extension of the limitation time to bring his case.
At this point, an assessor had reported to the church that there was enough evidence to argue the abuse had occurred beyond reasonable doubt.
All the questions came from commissioner McClellan:
Q. Mr McCann, in the circumstance that you were instructed that your clients accepted that the acts that had done the damage to a plaintiff occurred, would you still give advice to vigorously defend on the basis of the limitation period?
A. Well, I formed the view, your Honour, this case would fail.
Q. I'm not talking about this case. I'm talking about any case. If a client comes to you and says to you that they accept that the acts causing the damage occurred, would you still give advice to vigorously defend the limitation application?
A. Your Honour, if they were seeking legal advice from me, yes, I would. I'm sorry, I ---
Q. How do you justify vigorously defending a limitation action in the event that the client accepts that the acts, which might otherwise have been in dispute, are not in dispute?
A. Well, my instructions were that ---
Q. No, I'm talking about you, in your mind?
A. Your Honour, I see myself as a lawyer.
Q. Precisely.
A. And I was giving legal advice.
Q. I'm asking you for the foundation for it, because, as you know, as well as I, the reason why the Limitation Act bites is because of difficulties that defendants might have in defending, having regard to the passage of time; correct?
A. True.
Q. If there's no difficulty because the client accepts that the acts causing damage occurred, do you still believe it appropriate to advise to vigorously defend?
A. Well, I act on instructions, your Honour. If they were my instructions to vigorously defend it, I would vigorously defend it.
Q. Even if the client said, yes, that these things happened?
A. If they had the wrong defendants, I would vigorously defend it.
Q. No, no, no. If they said these things happened, would you defend?
A. I would reflect on that.
McCann: concedes the cross-examination of Ellis shouldn't have happened
The church's own investigation had all but confirmed Ellis' claims.
Despite this, McCann's team set out to attack him in court. Justice McClelland headed straight for the jugular in his final questions to Corrs' big gun.
Q. Mr McCann, I have to tell you again, or give you the chance again to respond to this proposition. If you had accepted that the abuse happened, you could still have questioned Mr Ellis about his perception and understanding of it, couldn't you?
A. Yes, we could have.
Q. It wasn't necessary to put in issue, as was done, whether or not it happened?
A. Look, I concede that.
Q. Sorry?
A. I concede that.
Q. Again, I ask you, you do understand, don't you, how extremely hurtful to someone ---
A. Yes.
Q. --- such a tactical exercise in litigation could be?
A. Yes, I can see that, but, as I say, the hands of that trial were with senior counsel, but I accept that I was relevantly the instructing partner.
Q. The course taken should never have happened, should it?
A. The?
Q. The course that was taken in that respect should never have happened, should it?
A. Well, I think it's only a portion of the cross-examination.
Q. Nevertheless, it's a fundamental challenge to Mr Ellis, and it shouldn't have happened, should it?
A. On reflection, probably not.
* * *
On March 20, it was John Dalzell's turn.
Dalzell was a senior associate at Corrs during the litigation. When pressed at the commission he had significant memory lapses about his role in the Ellis case, even though there's a boast about the appeal outcome in his entry on the Gadens' website.
Again, the interrogator was Peter McClellan.
Q. Mr Dalzell, I've now read your statement. You say a lot of times that you don't remember things.
A. Your Honour, yes.
Q. Were you in court all the times?
A. I was, yes.
Q. Were you the primary instructor of the barristers all the time?
A. In court, yes.
Q. And out of court, did you go to their chambers to discuss the tactics for the case?
A. I did, your Honour.
Q. Were you involved in discussions about the tactics for the case?
A. I was, your Honour
Q. Did you, on behalf of the client, give the instructions as to the tactics?
A. Your Honour, yes.
Q. And you can't remember anything that happened?
A. Well, I wouldn't go so far as to say I can't remember anything that happened ---
Q. Well, look at your statement. Time after time in relation to important issues, you say you cannot recall anything about it.
A. Yes.
Q. This was, for you and for the church, a significant piece of litigation, wasn't it?
A. I would agree with that, your Honour, yes.
Q. And the tactical decisions that were made were critical not only for this case but for the church's capacity to defend many cases; correct?
A. Correct, your Honour.
Q. So that the instructions that you gave had to be carefully thought out, the litigation planned and executed in accordance with your instructions by the barrister?
A. I would agree with that, your Honour, yes.
Q. And you don't remember what instructions you gave?
A. Specifically about what, your Honour?
Q. About what was to be put in issue factually.
A. I remember some of the case, your Honour.
Q. But you don't remember whether or not, or who gave the instruction to deny Mr Ellis's claim that he had been abused?
A. That's correct, your Honour.
Q. That was critical, wasn't it, to the whole defence?
A. It was, your Honour, but it was also nine years ago. I've done many cases throughout the time.
Q. Maybe you have, but you don't remember a thing about this one?
A. In the short time I've had to think about it, your Honour, and I didn't read the tender bundle until quite recently - that's the answer, your Honour. I don't remember.
Dalzell attempted to justify those defence tactics that he could remember - without success.
Q. You had no reason to doubt, as a consequence, that Mr Eccleston's conclusion was the correct one, did you?
[Michael Eccleston was appointed by the church to assess Ellis's complaint and reported it was arguably beyond a reasonable doubt.]
A. My recollection, and again being refreshed yesterday from reading it, your Honour, is that Mr Eccleston interviewed Mr Ellis and looked at a number of Mr Ellis' reports that were provided to him. He formed his view on the basis of that interview, your Honour.
Q. Yes, and that's what we're just talking about: the fact is that in most cases of this type, that's the evidence, the only evidence, which a court has – the evidence of the complainant; correct?
A. The evidence of the complainant that was then ---
Q. Sorry?
A. Your Honour, the court would have the benefit of - not the benefit - it would certainly have before it evidence by a complainant that had been tested.
Q. Yes. Someone would ask and challenge that person as to whether or not they could be believed; correct?
A. I believe that, your Honour, yes.
Q. That's what you would expect Mr Eccleston to do in the process of reviewing the case on behalf of the church, wouldn't you?
A. Yes.
Q. And you knew that Mr Eccleston, having taken the steps that he had, written his report in a way which was legally perfect, had reached the conclusion that Mr Ellis was telling the truth, didn't you? You knew that?
A. I knew that that's the conclusion that was drawn, yes.
Q. And you had nothing, nothing, to suggest to the contrary, did you?
A. I didn't, your Honour, no.
Q. No. Yet you sat in court while your counsel put in issue whether or not Mr Ellis was telling the truth, didn't you?
A. I did, your Honour, but I should qualify that and say that the Eccleston report, from memory, was tendered in evidence before Patten AJ and submissions were made by both parties about that.
Q. That may or may not be the case, but you knew that Mr Eccleston had determined that Mr Ellis was telling the truth, didn't you?
A. I did know that, your Honour, yes.
Q. And you knew that your client had nothing to the contrary of that proposition?
A. That's correct, your Honour.
Q. Indeed, by the time it all happened, you knew that your client had other evidence that may have tended to support Mr Ellis; correct?
A. In the sense of Mrs Penton's ---
[Judith Penton was a witness that Corrs Chambers Westgarth interviewed - who said she saw Ellis kissing the priest who abused him.]
Q. Yes.
A. Yes, that's correct, your Honour.
Q. You did. Yet, you sat in court, behind your counsel, while they attacked Mr Ellis's credibility and whether or not he was telling the truth, didn't you?
A. My recollection, your Honour, sitting in court, was that Mr Ellis's credibility certainly was attacked in respect of his awareness as to the connection - the causal connection, that is - between the abuse that was alleged and the damage suffered for the purposes of the Limitation Act.
Q. Mr Dalzell, we have the transcript. It went significantly beyond that. You sat there while your counsel put in issue whether or not Mr Ellis was telling the truth about having been abused; that's the position, isn't it?
A. It is, your Honour, yes.
Q. Can you explain how ethically you could sit there and do that?
A. Your Honour, I don't think it was ever put to Mr Ellis that he was lying about the abuse.
Q. Irrespective of the Mrs Penton conversation, when you went to court - we've just been through the process - you knew what Mr Eccleston had concluded, he having spoken with Mr Ellis; you knew that?
A. Your Honour, I did know that, and my memory from it is that - you're asking about my ethics, your Honour, and I say this ---
Q. I am. I'm putting squarely in issue how it can be that a solicitor, who has an obligation to the court not to do anything that could mislead in any way ---
A. I'm aware of that, your Honour.
Q. --- can sit behind counsel and allow this to happen?
* * *
Gilbert+Tobin, which is acting for the church at the commission, also had a moment in the headlines when it tried to derail the Adelaide hearings into the abuse of severely disabled children by a paedophile bus driver at St Anne's Special Needs School.
Last month, the ABC's Lateline program pointed to letters from G+T to the royal commission seeking to delay the hearings into the St Anne's case because the evidence that emerged would benefit the plaintiffs.
"If the commission's investigation occurs before the hearing of the civil actions, the plaintiffs in the civil actions could have the benefit of seeing the school entities' statements, documents and evidence and being able to plan their litigation strategy accordingly."
In order words, the church might have to dig deeper into its pocket for the expected settlements.
Peter Humphries, the lawyer acting for the victims, said:
"Well it is a pattern and it's actually consistent with what I was told within about three months of first becoming involved in this whole process.
I started in May 2008 and by August of that year I'd been visited by two lawyers acting for the church who told me their instructions were to take every legal point that they could."
McClelland told G+T, nice try, but no - the hearings would go ahead as planned.
See Adelaide public hearing transcripts.
Research Kate Lilly
Reader Comments