An employer induces or encourages an employee to be at a particular place in an overall period or episode of work, which is not the usual location for that work, and there is an interval or interlude during that overall period or episode of work, to what extent is the employee acting “in the course of employment”? That was a question that confronted Nicholas J in PVYW v Comcare (No 2) [2012] FCA 395 (19 April 2012).

The Facts
The Applicant was required by her employer to travel with a fellow employee to a town away from her normal employment location and residence. She stayed at a motel which was booked by her employer. The Applicant made arrangements to meet up with a male friend who lived in that town. She him at her motel, they went to a restaurant for a meal and then later that evening went back to the motel room of the Applicant, where they had sex. Whilst engaging in that sexual activity on the bed in the motel room the Applicant was injured. She was later taken to hospital for treatment.

The Applicant did not advise her employer how she intended to spend her time while she was at the motel or with whom, if anyone, she intended to associate while staying there.

There was no dispute that:
•    At the relevant time, the Applicant was an employee of the employer temporarily away from her usual workplace at the request of her employer.
•    The injuries suffered by the Applicant were both a physical and a psychological injury for the purposes of the Act, resulting in incapacity for work or an impairment.
•    There was no “gross impropriety” in the behaviour of the Applicant on the day she suffered her injury.

The Court Found
•    An employee who is at a particular place at which he or she is induced or encouraged to be by his or her employer during an interval or interlude in an overall period or episode of work will ordinarily be in the course of employment;
•    Absent serious and wilful misconduct or an intentionally self-inflicted injury.
•    The lawful sexual activity of the Applicant was not an interval or interlude that interrupted the relevant overall period or episode of work.
•    The relevant connection or nexus to employment continued while the Applicant was in the motel room in which her employer had induced or encouraged her to stay.
•    The injuries of the Applicant were suffered while she was in the motel room in which her employer had encouraged her to stay.
•    The injuries were suffered by the Applicant while she was at a particular place where her employer induced or encouraged her to be during an interval or interlude between an overall period or episode of work.

Ross Bowler LLB

The unique features of Family Law litigation have previously been discussed, as have the similarities to criminal law and civil law litigation, in terms of the role of the barrister.  Clients in Family Law litigation often talk of settling or compromising the matter at a much earlier stage than is the case in much of the criminal law and civil law litigation. That has an impact on how legal representatives are required to prepare that litigation.

We have already established from our previous discussions about criminal law, civil law and family law litigation that:
•    The client is entitled to be advised as to all the forms of mediation and alternative dispute resolution available in respect of the case.
•    Only when:
    •    Full instructions have been taken from the client in the subject case; and
    •    A conference is held with the barrister and solicitor and client discussing all aspects of the case;
    is the client in a position to make an informed decision as to:
    •    The merits of the case sought to be run; and
    •    What the client might wish to do in respect of that case.
•    The client is then optimally enabled to discuss:
    •    The extent to which mediation and alternative dispute resolution is appropriate in the case; and
    •    What the client may stand to gain or lose by compromising the matter.

In the circumstances any attempt to compromise family law litigation prior to that complete preparation being undertaken, including a comprehensive advice from and conference with the barrister, must:
•    Necessarily deny the client the opportunity to be fully informed about their matter; and
•    Colour any compromise accordingly.

It is even conceivable that in some circumstances the compromise might be able to be subsequently set aside by a Court as being one that was made without proper appreciation of the rights available to the client at the time.

Conclusion
Given the impact such a decision can have on your relationship with your children and/or your personal property, would you want to compromise your family law rights without being fully informed?

Ross Bowler LLB

Having discussed criminal law and civil law, I now propose to talk about family law and the demands it might make upon a barrister.

Whilst family law has its own unique features, it is most definitely a constituent part of the litigation arm of the law and those aforementioned rules of litigation apply to family law, as we shall see.

No decision can be made by a Court exercising family law jurisdiction without it being based on the evidence lawfully before the Court.  That evidence gets before the Court through witnesses, whether that occurs by way of affidavit or the witnesses giving evidence in the witness box.

On that basis the similarity with criminal law and civil law matters is significant and the extent to which family law matters might be subjected to a similar regime of obligations as those in criminal law and civil law matters is interesting.

In the circumstances I see no reason to distinguish between the obligations that will apply to advising a civil law client and a family law client when it comes to assessing the matter and being prepared for trial.

Accordingly in my view a family law client can expect to be advised by the barrister on these issues:
•    The strengths and weaknesses of their own case;
•    The relative strength of the case of any and all opponents, to the extent that that information is available;
•    The possible impact upon both cases from the course of the cross-examination;
•    Each witness making a sworn statement before the Judge;
•    Whether there was some unanswerable problem that the witness might confront in giving evidence;
•    Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
•    How the Client would conduct themself as a witness;
•    How any other witness might conduct themself as a witness;
•    The likely impression of the Client upon the Judge, when the Client gave evidence;
•    All the forms of mediation and alternative dispute resolution available in respect of the case.

In order for the family law client to be given such advice that client would need to talk to a solicitor. The solicitor could then use their professional skill and judgment to obtain all the relevant material for the advice, omit all the irrelevant material and compile it into a coherent brief for the barrister. Upon reading and considering the contents of that brief the barrister is then in a position to confer with the solicitor and the client. Using their professional skill and judgment gained from going to Court and arguing such matters, the barrister is able to discuss the case with the solicitor and the client and advise them in respect of it. At the end of that conference the family law client would be fully informed as to the strengths and weakness of their case and what options might be available in respect of it.

That interplay of professional skills and responsibilities between the barrister and solicitor best serves the family law client in answering their enquiries and educating them as to their position.

Ross Bowler LLB

Over the next couple of blogs I propose to deal with the role barristers can play in the legal system.

Criminal Law
The role of the barrister in criminal law matters is reasonably well known and understood.

Advice On Giving and / or Calling Evidence
Once full and proper written instructions have been taken from the Accused by the solicitor, the Accused is entitled to be properly advised in respect of giving and / or calling evidence at the trial.  That advice invariably comes from a barrister and the Court of Appeal has said that advice should include a discussion of the importance of:
•    The relative strength of the Crown case;
•    The impact upon that case from the course of the cross-examination;
•    Making a sworn denial before the jury;
•    Whether there was some unanswerable problem that the Accused would have confronted in giving evidence;
•    Earlier versions given by the Accused which might be difficult to reconcile with the current evidence of the Accused;
•    How the Accused would conduct himself as a witness;
•    The likely impression of the Accused upon the jury, if he gave evidence;
•    Any possible relevance of his not giving evidence at trial to determination of an appeal against conviction;
•    A potential advantage in the case of being last to address the jury.
It is also very proper to record the advice given in a complete fashion. (See R -v- ND [2004] 2 QdR 307; [2003] QCA 505)

Having had those discussions with the accused, the barrister is then in a position to advise the accused the prospects of success at trial and what might occur if the matter was compromised by way of a plea of guilty.

The accused is then in a position to make a fully informed decision as to how the matter ought proceed, either at trial or by way of plea of guilty and sentence.

Civil Litigation
Whilst civil law trials are different to criminal law trials in many respects, there are also many similarities.  The focus of criminal law trials is on the accused and all of the disclosure is expected to have occurred well before the matter comes to trial. Civil trials see the focus more evenly spread across the witnesses and a failure to disclose evidence may not be a reason to delay or adjourn the trial.

Bearing in mind the standard of proof in a civil trial is on the balance of probabilities, as opposed to beyond reasonable doubt in a criminal trial, let us look at how the aforementioned list of obligations and entitlements in a criminal law trial might apply in a civil trial.

The civil law Client would be entitled to be advised as to:
•    The strengths and weaknesses of his own case;
•    The relative strength of the case of any and all opponents, to the extent that that information is available;
•    The impact upon both cases from the course of the cross-examination;
•    Each witness making a sworn statement before the Judge or jury, as the case may be;
•    Whether there was some unanswerable problem that the witness might confront in giving evidence;
•    Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
•    How the Client would conduct himself as a witness;
•    How any other witness might conduct himself as a witness;
•    The likely impression of the Client upon the Judge or Jury, if he gave evidence;
•    Any possible relevance of the Client not giving evidence at trial to determination of an appeal against liability or damages, as the case may be;
•    A potential advantage in the case of being last to address the Judge or Jury; nowhere near as significant in a civil trial.
•    All the forms of mediation and alternative dispute resolution available in respect of the case.

Conclusion
In my submission the obligation to advise a Client in respect of a civil trial is very similar to the obligation the Court has identified in respect of criminal trials. Accordingly comparable preparation for that civil trial can be expected to be required of the legal representatives.

This would then enable the Client to make an informed decision as to the merits of the case sought to be run and what the Client might wish to do in respect of that case.

It would also enable optimum discussion about the extent to which mediation is appropriate in the case and what the Client may stand to gain or lose by compromising the matter.

What obligations do you see that fall to a barrister when it comes to advising a client before a trial?

Ross Bowler LLB