Day v Smidmore and ors [2004] NSWIRComm 287

Day v Smidmore and ors [2004] NSWIRComm 287

The applicant, a solicitor experienced in litigation, sent bizarre, scurrilous, scandalous and offensive communications and affidavit material to a female employee witness, including an invitation to recant aspects of her affidavit and threats to her professional future. The uncontradicted evidence showed that those communications caused real fear and concern about giving evidence. Viewed objectively and having regard to the witness's subjective concerns, the applicant's conduct seriously compromised her ability to give evidence freely and without fear of retribution. No adequate mechanism, including the applicant's late undertaking or possible court security, could cure the prejudice....

Jurisdiction
Australia
Judgment Date
18 November 2004
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Interlocutory Judgment on Respondents' Application for a Permanent Stay of Proceedings
Outcome
Proceedings permanently stayed; applicant ordered to pay respondents' costs; judgment directed to be forwarded to the Legal Services Commissioner of New South Wales.
Legal Topics
['unfair Contract' 'permanent Stay of Proceedings' 'abuse of Process' 'fair Trial' 'witness Intimidation' 'costs' 'referral to Legal Services Commissioner']
['industrial Relations' 'civil Procedure' 'legal Profession'] ['unfair Contract' 'permanent Stay of Proceedings' 'abuse of Process' 'fair Trial' 'witness Intimidation' 'costs' 'referral to Legal Services Commissioner']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 Alleging an Unfair Contract / Interlocutory Judgment on Respondents' Application for a Permanent Stay of Proceedings

Legal Issues

  1. 1 ["Whether the applicant's conduct and communications constituted an abuse of process warranting a permanent stay of the proceedings." "Whether the applicant's conduct compromised the ability of the Court to conduct a fair trial, particularly in relation to a female witness's ability to give evidence freely and without fear." "Whether any measures short of a permanent stay could cure the prejudice caused by the applicant's conduct."]

Ratio Decidendi

The applicant, a solicitor experienced in litigation, sent bizarre, scurrilous, scandalous and offensive communications and affidavit material to a female employee witness, including an invitation to recant aspects of her affidavit and threats to her professional future. The uncontradicted evidence showed that those communications caused real fear and concern about giving evidence. Viewed objectively and having regard to the witness's subjective concerns, the applicant's conduct seriously compromised her ability to give evidence freely and without fear of retribution. No adequate mechanism, including the applicant's late undertaking or possible court security, could cure the prejudice....

Court Disposition

Proceedings permanently stayed; applicant ordered to pay respondents' costs; judgment directed to be forwarded to the Legal Services Commissioner of New South Wales.

Orders

  • ['The proceedings are permanently stayed.' "The applicant is to pay the respondents' costs of the proceedings in an amount assessed under the Legal Profession Act in default of agreement." 'The Industrial Registrar is directed to forward a copy of the judgment to the Legal Services Commissioner of New South Wales.']