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Barry Lane
5 March, 2010  
More robust advocacy

Melbourne silk Paul Scanlon in the frame, again … Victory at any price … Inappropriate closing address … Trial judge Jack Forrest also knuckle-rapped … VWA defending with no real case

imageWhen the Court of Appeal last considered his brand of “robust advocacy”, Paul A. Scanlon QC got a slap.

It will be recalled that in Rees v Bailey Aluminium Products Pty Ltd & Anor the court thought that Scanlon had overstepped the line drawn by appellate courts to keep over-enthusiastic counsel from derailing trials.

See my previous correspondence on this.

On that occasion the appeal bench found Scanlon “guilty” of 10 instances of over-enthusiasm.

This included inappropriately putting allegations of fraudulent collusion to one of the plaintiff’s witnesses, impermissibly attacking the credit of one witness through another and introducing highly prejudicial personal and irrelevant matters in his closing address.

It was unfortunate that Scanlon didn’t have the benefit of the Court of Appeal’s condemnation of his performance in Rees before he rose to his feet and gave his closing address on behalf of a VWA represented employer in Baulch v Lyndoch Warrnambool Inc.

Karen Baulch, a nursing home employee, sued following a slip and fall after an exhausting 29 hours work. The jury found she was not injured as a result of the boss’ negligence.

Although Rees was argued on March 13 and 14, 2008, judgment was not delivered until December 5, 2008, whereas the jury gave its verdict in Baulch on or about October 10, 2008.

It appears that after a speech by Chief Justice Marilyn Warren at a judges’ conference on October 9, 2009, Scanlon’s performance in Rees found its way into the public arena via a HUN report of October 18 that year.

In Baulch, the Court of Appeal ordered a retrial and gave Scanlon another slap for introducing a raft of inappropriate statements in his closing address.

Among other impermissibilities, he sought to impugn the plaintiff’s credit without having put any of his contentions to her or her medical witnesses during the trial, contrary to the rule in Browne v Dunn.

In commenting on Scanlon’s breach of the Browne v Dunn rule, which the court regarded as “egregious”, the appeal bench said:

“The conduct of defence counsel in this instance is to be condemned. It was not an inadvertent mistake or a rash decision taken in the heat of forensic contest. It was a deliberate disregard of a fundamental rule of fairness in the conduct of adversarial litigation. Further, the breach in this case was particularly significant as it involved not only a failure to cross-examine the appellant but a failure to cross-examine a number of medical practitioners who supported her case on this point. The failure occurred in circumstances where defence counsel must have known that he had no evidence he could call to contradict the appellant’s assertion.”

imageScanlon (seen here) also confusingly and inappropriately conflated the legal concepts of recent invention, hearsay and prior consistent statement.

Regarding Scanlon’s submissions on the plaintiff’s right to receive statutory benefits under the Accident Compensation Act 1985, the court noted:

“The obvious argument being urged upon the jury is that the appellant is greedy; she should be content with her worker’s compensation payments; her case is weak; she has been paid anyway and her claim should be dismissed.”


“The juxtaposition by defence counsel of a comment on the weakness of the appellant’s case with comments about her workers’ compensation entitlements can only have been calculated to distract the jury from a proper consideration of the legitimate issue before them, namely, whether the appellant had established negligence by the respondent as a cause of injuries which she received…

There can be no justification for this irrelevance. Nor was there any justification for counsel’s cross-examination of the appellant as to her receipt of workers’ compensation payments, coupled with questions as to her knowledge that an injured worker is entitled to workers’ compensation even if injured as a result of her own fault.”

imageThe trial judge, Justice (Jack) Forrest (seen here, left, with his brother Terry), also came in for a caning.

In relation to the HH’s directions on the “statutory entitlement” issue the appeal judges were unimpressed.

Forrest did not directly refer to “the false issue” created by Scanlon or the suggestion that the appellant was greedy.

This left the jury to decide the case “with an uncontested, irrelevant and misleading submission concerning a false issue to the significant prejudice of the appellant”.

The trial judge did not interrupt Scanlon’s address, there was no objection from opposing counsel and there was no direction to the jury which acknowledged the error or sought to eliminate its effect.

“Indeed, even if there had been an immediate response from the judge at the time the error was made or a strong direction given later in his charge, it must be regarded as extremely doubtful that the situation could have been adequately recovered. The appellant’s case may well have already been fatally affected.”

The problem with this case, and many like it, is that the defendant’s insurer, the VWA, has no actual “defence” to the action.

Rather than run up the white flag their legal representatives, no doubt in accordance with their instructions, resort to the creation of “false issues” and other sleights of hand – because that’s all they can do.

I’m not saying Scanlon should get off without a good bollocking, but he is not the only one at fault.

The VWA and the government also are squarely in the frame.

It is they who profit by sending the likes of Scanlon into the field with instructions to search and destroy.

Rob (&%#$@*) Hulls should do Ms Baulch and us taxpayers a favour by compelling the VWA to behave like the “model litigant” it purports to be.

This case will already have cost hundreds of thousands of dollars to “defend” and it ain’t over yet.

How much more grief and aggravation does Ms Baulch have to endure and how much more do we have to send down the pan tormenting her before this sorry affair is brought to an end?


Reader Comments

Posted by: Anonymous
Date: March 20, 2010, 8:26 pm

Whether Paul Scanlon QC is or is not the only one at fault is irrelevant. His conduct of the trial was absolutely outrageous and he fully deserved every bit of the condemnation he received from the Court Of Appeal. Especially as this is not the first occasion he has behaved in a thoroughly unprofessional and unethical manner in his conduct of a trial. If he is not struck off, it will send a terrible message to all other barristers that this sort of behaviour is acceptable.