Stalled at the cab rank

A defamation action by three former employees of Keddies against the law firm has hit a snag ... McClintock withdraws after Keddies' partners object ... Trial delayed ... No senior barristers available ... Law firm overcharging to be probed in libel trial

McClintock - returned the briefThe partners of the notorious Sydney law shop Keddies are being sued for defamation by three former Chinese employees.

However, the hearing of the defamation action set down for this month has been derailed following a complaint that the plaintiffs' barrister, Bruce McClintock, had previously advised the law firm in relation to a separate matter dealing with some of the same issues.

On that occasion he was advising the law firm partners about the prospects of suing The Sydney Morning Herald over its series about the firm's overcharging.

McClintock gave written advice to Keddies about that on June 5, 2009.

The experienced silk maintains that he did not have any confidential information about the case that would prevent him continuing to appear for the other side in the current action.

In any event, because of the objections, and with the plaintiffs' acceptance, McClintock returned the brief late last month.

The plaintiffs are three Chinese who worked on some of Keddies' personal injury cases that subsequently hit the headlines in an unfortunate way.

One employee provided "marketing and advertising services" to attract Chinese clients. Another was an interpreter, and the third was a legal clerk (now a solicitor).

The matter complained of concerns Keddies publishing remarks in Chinese to members of the Chinese community.

When The Sydney Morning Herald broke the story in 2008 that alleged Keddies grossly overcharged some of its clients and falsified documents, the firm responded that various former disgruntled employees were responsible for these assertions.

These employees were sacked, they claim, because they refused to lie on oath. Issues of criminality and professional misconduct are raised in the case.

Keddie: defendantNow the whole thing has ended up in the defamation court, while the Legal Services Commissioner's misconduct investigation seems to be ratting along at a snail's pace.

Terry Tobin QC, briefed by Verekers, is appearing for the defendants: Russell Keddie, Scott Roulstone and Tony Barakat.

The defamation case had a hearing date of September 13.

The plaintiffs' solicitor Bruce Burke raced around frantically to find a senior barrister to take the case.

The usual suspects were approached, but for one reason or another all declined. Either they had a prior booking or were personally unable to do it.

The plaintiffs applied to Justice (Hormones) Harrison to vacate the hearing date. This was opposed by the Keddies' people.

Bruce Burke's affidavit said:

"I have been a solicitor for in excess of 30 years and have dealt extensively in the field of defamation during that time. I do not consider that justice can be served in this case if my clients are unable to be represented by a person with genuine experience in conducting difficult defamation cases.

The nature of the claims made in this case are such as to require that, in the interests of the defendants as well as the plaintiffs, the matter is conducted by very experienced counsel.

Furthermore, each of the defendants are solicitors and are represented by very experienced counsel."

There was no other evidence in the hearing before Harrison.

Burke unsuccessfully approached at least eight or nine senior members of the defamation bar.

Terry Tobin suggested others and submitted that Kate Traill, junior to McClintock, take over the case. Tobin pressed for the show to  open on September 13.

Harrison was "not attracted to the proposition" that Traill had been in the case long enough for her to continue alone - "without any disadvantage to the plaintiffs".

Hormones said that Bruce Burke's affidavit did not reveal whether or not he was aware that McClintock had previously advised the defendants before it became an issue late last month.

"The issue was not explored at all during the application before me. Whether or not it achieves a later significance remains to be seen."

The judge thought that the "efficient and ordered disposition" of these proceedings would be best served by vacating the September hearing date and trying to get it on next year.

See full judgment: Lee v Keddie

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Littlemore: complainedLast year Stuart (Keys) Littlemore had a hard fought case on behalf of his client Dr Peter Haertsch.

Haertsch sued over A Current Affair show that claimed he's botched a breast implant procedure on a Gold Coast metre maid, Andrea Chia, and was an incompetent plastic surgeon.

Opposing counsel, for Channel Nine, was Bruce McClintock.

The atmosphere in the court crackled with the barristers' competitiveness and antipathy for each other ... and that's putting it gently.

At one point trial judge Henric Nicholas said:

"Both of you, this case is going to run in an intelligible way. It will have to be done without interruptions from either side. Sledging went out with Ian Chappell."

The plaintiff eventually won the case with a jury finding all the imputations conveyed and none of them true. Justice Nicholas awarded damages of $267,919 for what he described as Channel Nine's "gutter journalism".

Subsequently, Keys made some sort of complaint to the Bar 'n' Grill that McClintock had impugned his integrity as a barrister by suggesting he intended to humiliate Chia in cross-examination.

The relevant professional conduct committee decided the complaint was not worth pursuing, but in the process of reviewing the proceedings they discovered that Littlemore had made an offensive, sotto voce remark about McClintock.

This is what happened.

Before Littlemore resumed his cross-examination on the morning of November 25, 2009, and in the absence of the jury, he told Justice Nicholas he wanted to test an imputation - that because of his incompetence Dr Haertschf had made the life of Andrea Chia a misery.

He planned to do this by raising intensely personal aspects of Chia's life, which could account for her unhappiness.

McClintock was having none of it.

Leaping to his feet, he invoked section 41 of the Evidence Act, saying that the line of inquiry Littlemore proposed was "clearly intended to humiliate the witness".

Littlemore was indignant:

"I find it deeply offensive and I shall take the appropriate action."

He then turned and muttered, in reference to McClintock: "toe-rag ... scum."

Several people in court heard it.

The conduct committee was unimpressed, but at this stage will not take it any further.

The stand off between the two defamation silks continues.