ETHICS FOR PERSONAL INJURY LAWYERS

What do we mean when we talk about legal ethics?

The etymological explanation of ethics provides little practical assistance in understanding the meaning and operation of this term. Similarly, the definitions of the term in the major dictionaries are generic and vague.

In researching this paper, I found the definition provided by the Queensland Law Society to be the most helpful in understanding the meaning and application of the concept.

The Queensland Law Society website states as follows: –

“Lawyers ethics are principles and values which, along with conduct rules and common law, regulate a lawyer’s behaviour. They act as a guide to ensure right conduct in the daily practice of law.

What makes lawyers so different?

Lawyers occupy a critical and sensitive place in the functioning of a society governed by the rule of law. This is why the practice of law is so much more than a business or industry and why lawyers are required first and foremost to be officers of the Court and to prove that they are “fit and proper” to hold such an office. The way lawyers conduct themselves directly impacts on public confidence in the profession and more broadly, in the administration of justice. For this reason, lawyers have a duty to encourage public confidence in their profession. This means maintaining the highest of ethical standards and always acting in the best interests of the client and community.” 

The legal profession in Western Australia is regulated by the provisions of the Legal Profession Uniform Law (WA) (“the Uniform Law”) which came into operation on I July 2022. Pursuant to section 427, the Uniform Law adopts the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (“Solicitors’ Conduct Rules”) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 (“Barristers’ Conduct Rules”).

Both sets of Rules make it clear that they are not to be interpreted as a complete code of conduct. 

Rule 2 of the Solicitors’ Conduct Rules provides: –

2.1 The purpose of these Rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules.2.2. In considering whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct, the Rules apply in addition to the common law.

Rule 7 of the Barristers’ Conduct Rules provide: –

These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, the legislation regulating the legal profession and in the general law (including the law relating to contempt of court.)

So, if the Solicitors’ Conduct Rules and the Barristers’ Conduct Rules do not provide complete codes of conduct, where does one find the overarching principles to be followed in ethically discharging one’s duties as a lawyer?

Justice Craig Colvin of the Federal Court of Australia delivered a paper to the WA Bar Association on 20 October 2020 entitled Virtue, Honour and Ethics: Problems with Deontological Perspective on Ethical Responsibilities of Lawyers. In the paper, his Honour suggested that the ethical obligations of lawyers were best discharged by the possession of innate moral virtues which his Honour identified as a lawyer being honest, reliable, candid, constructive, respectful, temperate, diligent, passionate, empathetic and humble. His Honour considered that a lawyer possessing these innate qualities of moral character could still succumb to the rigours of legal practice. In this regard, his Honour cited the observations of Patrick Schilz, On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy and Unethical Profession’ (1999) 52(4) Vanderbilt Law Review 871, 908-909 who stated: –

“Unethical lawyers do not start out being unethical; they start out… as perfectly decent young men or women who have every intention of practicing law ethically. They do not become unethical overnight; they become unethical…. a little bit at a time… by cutting a corner here, by stretching the truth a little bit there… It will start with your time sheets…And then you will pad more and more….A deadline will come up one day… and you will not be able to meet it. So, you will call your senior partner of your client and make up a white lie for why you missed the deadline…None of these things will seem like a big deal in itself… But after a while, your entire frame of reference will change.”

Whilst these sentiments suggest that the compromise of moral virtues required of ethical conduct may be a gradual process of deterioration, this is not necessarily the case. Despite the exercise of care and attention, an ethical dilemma may arise spontaneously and unexpectedly upon the confluence of competing duties. Given the scope of a lawyer’s duties to interact with various individuals in performing legal services, it is inevitable that from time to time a lawyer will be confronted with an ethical dilemma. 

What distinguishes an ethical lawyer from an unethical lawyer is firstly, the ability to recognise an ethical dilemma when it arises and secondly, the way the dilemma is dealt with by the lawyer. Whilst the failure to recognise an ethical dilemma may be forgivable, the mismanagement of the problem invariably constitutes the deadly sin.

The intent and purpose of this paper is not to embark on a philosophical analysis of what constitutes ethical legal practice, as this exercise is a study giving rise to several learned textbooks and university courses. This paper will focus narrowly on personal injury practice, particularly, the taking of instructions, the pleading of the action and defence and the negotiation of the action at Pre-trial Conference and or Mediation. I hope to draw attention to ethical issues that frequently arise during these processes and procedures and proffer practical suggestions as to how to manage such issues. I do not intend to be prescriptive in my recommendations and therefore, at best, I hope to be thought provoking.   

THE ETHICS OF TAKING INSTRUCTIONS

The first meeting with a prospective client requires the taking of several practical steps. Each practical step carries with it a variety of ethical issues which sometimes will be overlapping. Those practical steps will include: –

  • Identifying the client,
  • Ensuring that the client has capacity to act,
  • Obtaining clear, accurate and comprehensive instructions,
  • Identifying and avoiding conflicts of interest,
  • Maintaining a client’s confidences,
  • Providing accurate preliminary advice,
  • Obtaining the client’s authority to act.

Identifying the client

The identification of the client does not usually present challenges. However, despite secretarial vetting, it is not uncommon for the client to attend the first appointment in the accompaniment of a friend or family member. When this occurs, it is important to encourage the client to provide instructions in private to ensure confidentiality. If the client is committed to having a support person present, firstly, identify the relationship of the support person to the client and secondly, obtain the written approval of the client to conduct the appointment in the presence of the support person and confirm in writing the confidential nature of the appointment to all those present. 

In Motor Vehicle Accident claims or Fatal Accident claims, the first appointment may be attended by several would be claimants. It is important at the outset to establish whether the interests of all those present coincide or alternatively whether there are conflicts of interest that would preclude you acting for all parties. As will be detailed below, where a conflict of interest is apparent, it will not be possible for you to act for all parties. In claims involving multiple parties, the duties owed to each claimant are separate and must be discharged separately. It necessarily follows that instructions and communications should be had with each client individually. 

It is also important to ensure that all parties who should be clients are properly represented.

I have been involved in the review of a case where dependants in a Fatal Accident case were overlooked in the settlement of the claim.

I have also alerted my instructing solicitor to the fact that the relative of an injured plaintiff who had witnessed the plaintiff’s accident and suffered mental harm had a separate cause of action.

Capacity to Act

There is a presumption of law that every adult person has legal capacity to make decisions and provide instructions. This presumption is dislodged by the person alleging incapacity discharging the civil onus of proof. In a personal injuries practice, the claimant may have sustained an acquired brain injury or may have suffered mental harm which has adversely impacted upon their cognitive functions. It is prudent to establish at the first appointment whether the client has capacity to provide instructions. If in doubt, a report from the client’s General Practitioner should be obtained to ensure that you are acting with appropriate instructions.

Obtaining clear, accurate and comprehensive instructions

There is an unfortunate trend amongst personal injury lawyers, to record the client’s initial instructions with handwritten notes. This process encourages abbreviations and discourages a proper and thorough enquiry as to the mechanics of the injury and its consequences. Whilst, this methodology may work with standard Motor Vehicle Accident claims, it should not be employed when recording Industrial Accident or Public Liability claims or indeed any claim involving complex factual circumstances. For a lawyer to provide competent and accurate advice, a thorough understanding of the facts giving rise to the claim needs to be had. Of course, the mechanics of certain accidents cannot be fully understood until the report of an expert has been received. A good first step in the process requires a comprehensive proof of evidence from the client, which is best achieved with the use of a Dictaphone or other voice recording system. Those possessing advanced computer and typing skills can contemporaneously type out a proof of the client’s instructions. The advantage of this methodology has several attributes including: – 

  1. When reviewing the proof of evidence, it will focus attention on the need for further information,
  2. The draft proof of evidence can be sent to the client to be checked for errors and for the provision of further information, therefore eliminating the possibility of misunderstandings,
  3. As the client’s recollection of events will fade with the passage of time, a comprehensive proof of evidence has the advantage of preserving vital information,
  4. The settled proof of evidence, signed by the client eliminates the possibility of the client later asserting that the lawyer failed to properly record and understand important information,
  5. The signed proof of evidence provides the factual matrix for providing the client with accurate legal advice,
  6. The signed proof of evidence enables the lawyer to plead the client’s case accurately thus avoiding the hazards of improvisation,
  7. In circumstances where Counsel is briefed, the signed proof of evidence provides a useful starting point from which Counsel can derive an understanding of the case,
  8. If the action proceeds to trial, the signed proof of evidence provides the basis of the client’s evidence-in-chief.
  9. Finally, in circumstances where your client changes his evidence during trial, the signed proof of evidence provides a basis for enabling you to cease acting where your legal position is compromised.

Given a lawyers duty of loyalty to the client one always needs to be mindful of conflicts of interest.

Identifying and avoiding conflicts of interest

In taking instructions, there are two areas of conflict of interest that a lawyer needs to be mindful of, namely, the conflict of acting for more than one client and the conflict of acting against a former client.

  1. Acting for more than one client. 

Rule 11 of the Solicitors’ Conduct Rules states as follows: –


11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients. 11.2 Duty of loyalty If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rules 11.3 and 11.4. 11.3 Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor or law practice may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client —  11.3.1 is aware that the solicitor or law practice is also acting for another client, and 11.3.2 has given informed consent to the solicitor or law practice so acting. 11.4 Duty of confidentiality In addition to Rule 11.3, where a solicitor or a law practice acts for two or more clients in the same or related matters and the solicitor or law practice is in, or comes into, possession of information which is confidential to one client (the first client) which might reasonably be concluded to be material to the other client’s or clients’ matter and detrimental to the interests of the first client if disclosed, the solicitor and the solicitor’s law practice may not act or continue to act for the other client or clients unless each client’s informed consent —  11.4.1 permits the disclosure and use of that information for the benefit of the other client or clients, or 11.4.2 requires the establishment and maintenance at all times of an effective information barrier to protect the confidential information of each client. 11.5 Actual conflict arising between current clients in the course of a matter If a solicitor or a law practice acts for more than one client in a matter and, during the course of the conduct of that matter, an actual conflict arises between the duties owed to two or more of those clients, the solicitor or law practice may only continue to act for one of those clients (or for two or more of those clients between whom there is no conflict) in the following exceptional circumstances —  11.5.1 any client for whom the solicitor or law practice ceases to act has given informed consent to the solicitor or law practice continuing to act for the remaining clients, and 11.5.2 the duty of confidentiality owed to all of the clients, both those for whom the solicitor or law practice ceases to act and those for whom the solicitor or law practice continues to act, is not put at risk.

Where multiple parties seek representation arising from a single accident, it is necessary to ensure at the outset that their interests coincide. One also needs to think ahead to see whether a conflict of interest may arise further down the track. The late discovery or realisation of a conflict of interest will usually result in the legal practitioner ceasing to act for all parties which gives rise to increased cost, increased delay and very unhappy clients who are inconvenienced in having to instruct new solicitors and start the whole process afresh. One means of establishing whether a conflict exists, is to determine whether advice provided to one client will adversely impact on advice provided to the other. The duty of loyalty owed to one client cannot be compromised by the duty owed to another. If you find yourself in a situation where to are proving advice to one client to the exclusion of another client, you have a conflict of interest.

  1. Acting against a former client

Rule 10 of the Solicitors’ Conduct Rules states as follows:


10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients. 10.2 A solicitor or law practice who or which is in possession of information which is confidential to a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS —  10.2.1 the former client has given informed consent to the disclosure and use of that information, or 10.2.2 an effective information barrier has been established.

In simple terms, a lawyer cannot act for a party where to do so will undermine obligations to a former client. Whilst it is settled law that the fiduciary duty owed by a lawyer only operates during the term of the retainer. See Prince Jefri Bolkiah v KPMG (A firm) [1992] 2 WPR 215, the lawyer’s duty of confidentiality continues unabated after the conclusion of the retainer.

The failure to properly assess a conflict of interest, may not only sound in disciplinary proceedings, but may have ramifications on the lawyer’s professional indemnity policy in attracting double excess. See sub-clause 11.3.1.1 of the Law Mutual (WA) Master Policy 2024-2025.

The financial impact in belatedly discovering a conflict of interest, can have the unfortunate consequence of the practitioner attempting to circumvent or ignore the problem in the misguided belief that it will disappear upon settlement of the case. Of course, the cover up adds the further complexity of the lawyer breaching their fiduciary duty to multiple client’s by placing the lawyer’s interests ahead of the clients. Any settlement effected under those circumstances is susceptible to being set aside. If the cases cannot be settled and the actions proceed to trial, all will be revealed by the Trial Judge who may be forced to abort the trial and possibly refer the lawyer for disciplinary proceedings.

In summary, the identification of a conflict of interest early in the piece is most important. This can be achieved by taking comprehensive instructions and asking the right questions and by having adequate conflicts register in place.

Similarly, if it appears that the opposing lawyer is acting in a conflict of interest, this should be raised with the opposing lawyer at the earliest opportunity.

In circumstances where there is any doubt as to the existence of a conflict of interest, soldiering on is not the answer. The issue should be resolved by a brief to Junior or Senior counsel seeking a written opinion on the issue.

Maintaining a client’s confidences

The contractual and fiduciary relationship that exists between lawyers and their clients gives rise to a duty of confidentiality not to disclose the client’s confidential information. The rationale for such duty is to facilitate the full and frank disclosure of information to promote better representation.

The duty of confidentiality is enshrined in Rule 9 of the Solicitors’ Conduct Rules which provides as follows:-

9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not —  9.1.1 a solicitor who is a partner, principal, director, or employee of the solicitor’s law practice, or 9.1.2 a barrister or an employee of, or person otherwise engaged by, the solicitor’s law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client, EXCEPT as permitted in Rule 9.2. 9.2 A solicitor may disclose information which is confidential to a client if —  9.2.1 the client expressly or impliedly authorises disclosure, 9.2.2 the solicitor is permitted or is compelled by law to disclose, 9.2.3 the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations, 9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence, 9.2.5 the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person, or 9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity.

The exceptions to non-disclosure do not refer to confidential information which is also privileged.

Privileged information is information that is provided to a lawyer for the dominant purpose of obtaining legal advice or for actual or anticipated litigation. 

Privileged information will include handwritten notes, drafts of documents letters of advice and witness statements prepared for trial. It will also include communications with third parties such as expert witnesses.

The rationale for the protection of privileged information is one of public policy rather than one flowing from contractual or fiduciary relations.

Privileged information must nevertheless be confidential in nature.

Privileged information is protected from compulsory disclosure, but the protection of disclosure can be lost through waiver.

The onus of establishing waiver lies upon the party asserting waiver.

Waiver will occur where it is shown that there is conduct inconsistent with the maintenance of the privilege.

The test is objective and as such, the intent of the party claiming privilege is irrelevant.

The Solicitors’ Conduct Rules makes provision for the protection of a client’s confidential information through the operation of Rule 31 which deals with circumstances of inadvertent disclosure and Rule 14 which deals with the client’s entitlement to documents upon the termination of the lawyer’s retainer.

Client documents 14.1 A solicitor with designated responsibility for a client’s matter, must ensure that, upon completion or termination of the law practice’s engagement —  14.1.1 the client or former client, or 14.1.2 another person authorised by the client or former client, is given any client documents, (or if they are electronic documents copies of those documents), as soon as reasonably possible when requested to do so by the client, unless there is an effective lien. 14.2 A solicitor or law practice may destroy client documents after a period of 7 years has elapsed since the completion or termination of the engagement, except where there are client instructions or legal obligations to the contrary.
Inadvertent disclosure 31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material known or reasonably suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must —  31.1.1 return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent, and 31.1.2 notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material. 31.2 A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must —  31.2.1 not disclose or use the material, unless otherwise permitted or compelled by law, 31.2.2 notify the opposing solicitor or the other person immediately, and 31.2.3 not read any more of the material. 31.3 If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so.

As will be observed, these two Rules do not cover the field in relation to protecting and dealing with a client’s confidential information and accordingly, the following measures need to be taken:-

  1. Specifying in your retainer agreement with the client :-
    1. the manner whereby confidential information is to be stored,
    2.  who in your firm is authorised to have access to the client’s information and
    3. what is to happen to the confidential information upon the conclusion of the client’s case. 
  2. Adequate controls need to be put in place to ensure the protection of physical documentation during proceedings. Such controls may require records evidencing a chain of custody where a case is dealt with by several lawyers including Counsel.
  3. Where confidential information is shared with third parties, the confidential nature of the communication should be expressed.
  4. As the confidential information is the property of the client, always obtain client authorisation to facilitate the sharing of the information.

In general, members of the legal profession are reasonably accomplished at physically securing their client’s confidential information. The major concern as to protecting client confidentiality is brought about through the digitization of information. An unfortunate trend is for lawyers to store all their client’s information on computer files which are not properly managed. A brief to Counsel will frequently take the form of an e-mail attaching the client’s entire file records. The information which is not encrypted can inadvertently be sent to the wrong recipient or be susceptible to cyber hacking. Richard Douglas KC, in an article to Hearsay, Issue 98 December 2024 publication of the Queensland Bar Association entitled Barrister Cyber Risk, went so far as to suggest that “Any barrister who does not appreciate their stored data is subject to a cyber risk ought not be in practice”.

To take advantage of the convenience of communicating digitally, carries with it the obligation to ensure that the tools of communication use anti-virus software and use adequate passcodes, firewalls and whole-disk encryption. One can envisage the days whereby proof of protecting a client’s confidential information will require the production of audits by IT experts.

Providing Accurate Preliminary Advice

Following the receipt of instructions, the client should be provided with preliminary advice detailing the legal options available, the evidence required to pursue those options, the procedural pathway to pursuing the options and the anticipated cost and benefit to the client of pursing the various options. When I meet claimants prior to attending a Pre-trial conference, I always ensure that the claimants possess an understanding of the quantification of their claims, the liability issues in contention and the intended purpose of the Pre-trial conference. Given the fiduciary relationship that exists between a lawyer and a client, it goes without saying that ethical legal practice requires the client to be kept fully informed at all stages of the legal proceedings.

Obtaining the client’s authority to act.

The lawyer’s authority to act for the client is initiated in a retainer agreement which will include:

  1. The services to be provided.
  2. The scope of the services.
  3. The powers provided to the lawyer to perform those services.
  4. The means of protecting and dealing with the client’s confidential information.
  5. The mode of communication between lawyer and the client.
  6. The terms and conditions upon which payments are to be made to the lawyer and
  7. The circumstances and means by which the retainer agreement is to be terminated.

The Legal Profession Uniform Law (WA) regulates the manner and method whereby fees are to be charged and as such, lawyers need to be fully conversant with Chapter 4 Part 4.3 of the Act. The failure to comply with the statutory regime may impact upon the lawyer’s entitlement to recover fees and may expose the lawyer to disciplinary proceedings for unsatisfactory professional conduct or professional misconduct.

The pleading of the client’s case also carries with it ethical implications.

THE ETHICS OF PLEADINGS

The importance of pleadings cannot be overstated. D.B. Casson and I.H. Dennis in Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice, Twenty-Second Edition at page 88 stated: –

“The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus, to arrive at certain clear issues on which both parties desire a judicial decision. In order to attain this object, it is necessary that the pleadings interchanged between the parties should be conducted according to certain fixed rules, which it is our endeavour to state and explain in the following pages. The main purpose of these rules is to compel each party to state clearly and intelligibly the material facts on which he relies, omitting everything immaterial, and then to insist on his opponent frankly admitting or expressly denying every material matter alleged against him. By this method they must speedily arrive at an issue. Neither party need disclose in his pleadings the evidence by which he proposes to establish his case at the trial. But each must give his opponent a sufficient outline of his case.”

The rules of pleading in the District Court of Western Australia are found at Order 20 of the Rules of the Supreme Court of Western Australia. It is incumbent upon lawyers specializing in litigation to be proficient in pleading and well versed with the rules of pleading.

The functions of pleading as detailed in Odgers’ was endorsed by Chief Justice Martin in Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281 at [7]. Chief Justice Martin observed that modern case management, with the provision of the exchange of trial bundles and witness statements in advance of trial and the exchange of chronologies and written submissions left little opportunity for surprise or ambush. Accordingly, his Honour found that if pleadings satisfied their basic functions, the Court ought to discourage entertaining arguments over technical pleading rules.

In my opinion, the profession has taken licence from Barclay Mowlem, to lower the standard of pleading and in many respects to undermine its function.

This has ethical ramifications as the pleader has a duty not to mislead the court or another party in the provision of pleadings.

This duty finds expression in Rule 21.3 of the Solicitors’ Conduct Rules.

21.3 A solicitor must not allege any matter of fact in-         21.3.1. any court document settled by the solicitor,        21.3.2. any submission during any hearing,        21.3.3. the course of an opening address, or        21.3.4. the course of a closing address or submission on the                   evidence,        unless the solicitor believes on reasonable grounds that the factual        material already available provides a proper basis to do so.

An identical provision directed to barristers is found at Rule 64 of the Barristers Conduct Rules.

In short, unless you possess credible evidence in support of a factual allegation it should not be pleaded.

The point was highlighted by Justice Pullin in Hall Chadwick (WA) Pty Ltd Formerly known as Hall Chadwick Securities Pty Ltd v Axiom Properties Ltd [2002] WASC 179.

His Honour stated at [22]:-

“Counsel who proffers a pleading owes a duty to the court. A pleading is not to be put up simply because it would, if it could be supported by any evidence, be a good defence. The duty of counsel is to ensure that only genuine points of defence are raised in a defence. See Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190 at 193 and Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56 at 60.”

It follows as a matter of logic that one should not commence or continue proceedings which have no reasonable prospects of success.

One sees, on a regular basis, allegations of contributory negligence which are pleaded in the form of conclusions rather than material facts which suggests that the pleading is taken from a precedent rather than from statements of evidence.

Further and in the alternative, if the Plaintiff sustained injuries, loss or damage as alleged, or at all (which is denied) then such injuries, loss or damage were caused or alternatively contributed to by the Plaintiff’s negligence.                  Particulars of Plaintiff’s NegligenceThe Plaintiff was negligent in that he:Failed to keep a proper lookout.Drove the Plaintiff’s vehicle at a speed which was excessive in the circumstances.

The pleading is also objectionable in that the allegations of contributory negligence are relegated to the status of particulars and are liable to be struck out. A proper and informative plea of contributory negligence would read as follows: –

At the time of the collision:It was nightfall and there was no moonlight,There were no streetlights,The speed limit was designated 100 kilometres per hour,The Plaintiff was driving the Plaintiff’s vehicle with no illuminated headlights,The Defendant was driving the Defendant’s vehicle at 100 kilometres per hour, The Plaintiff was driving the Plaintiff’s vehicle less than two car lengths immediately behind the Defendant’s vehicle,By reason of the matters pleaded above, it was reasonably foreseeable that the Plaintiff would be unable to avoid colliding with the Defendant’s vehicle where the Defendant was required to stop suddenly.In the premises the collision was caused or contributed to by the Plaintiff’s negligence.

In cases involving claims brought against employers, where the assessment of Whole Person Impairment is relevant to the recovery of common law damages, the employer through its Insurer will insert the following stock standard response without any supporting medical evidence,

The Defendant denies that the Plaintiff has sustained a Whole Person Impairment of at least 25% under section 424(5) of the Workers’ Compensation and Injury Management Act 2023,Further and in the alternative, the defendant denies that the Plaintiff has sustained a Whole Person Impairment of at least 15% under section 421(4) of the Workers’ Compensation and Injury Management Act 2023. 

In the absence of medical evidence supporting such allegations, the pleading is improper and is apt to be struck out.

Another defence in the Insurer’s toolbox, which is regularly abused, is the allegation that the Plaintiff’s ongoing symptoms and concomitant incapacity is attributable to a pre-morbid condition.   The evidential onus of proof principle was laid down in Watts v Rake (1960) 108 CLR 158, at 160. The High Court further clarified the operation of this principle in Purkess v Crittenden (1965) 114 CLR 164 at 168 when it stated:-

“… it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.

An example of the failure to have regard to the High Court’s deliberations and the function of pleading is illustrated below.

If, which is not admitted the Plaintiff sustained a disc protrusion at C7 with impingement and C7 radiculopathy, the Defendant states that any ongoing loss of damage was caused or alternatively contributed to by the Plaintiff’s pre-existing conditions.                           ParticularsParticulars may be provided following discovery and subpoenas in the proceedings.

Firstly, it is apparent from the pleading that it is unsupported by evidence and is therefore speculative. Secondly, it is embarrassing in that it does not identify any pre-existing condition that needs to be disentangled from the subject injuries. 

Similarly, it is improper to draft a pleading for ulterior motives or to gain tactical advantage. An extreme example of this is found in the decision of White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806. The facts bear repeating as the audacity of Flower & Hart in attempting to gain an advantage for their client by engaging in an abuse of process is incomprehensible. The case acquired more than usual public attention because Flower & Hart’s Counsel was Mr Ian Callinan QC who was later appointed to the High Court. In short, Flower & Hart’s client, Caboolture Park Shopping Centre Pty Ltd was liable for significant claims for payments to its builder White Industries (Qld) Pty Ltd. In an endeavour to postpose or delay the claims by White Industries (Qld) Pty Ltd, Caboolture Park Shopping Centre Pty Ltd issued proceedings against White Industries (Qld) Pty Ltd alleging misleading and deceptive conduct, fraud and negligence when there was no factual basis to these claims. Justice Goldberg, upon finding that there was no reasonable basis for the issuance and maintenance of the proceedings, held them to be an abuse of process and oppressive conduct and ordered Flower & Hart to pay White Industries (Qld) Pty Ltd costs on an indemnity basis. His Honour was less than impressed when Flower & Hart tried to shield itself behind the advice of Mr Ian Callinan QC as he then was.

Finally, because the drafter of a pleading is responsible for its contents, in accordance with Order 20 Rule 7 of the RSC, the author is required to sign the document. The ethical significance of this rule was endorsed by His Honour Judge Staude in the case of Bicker v Aegis Aged Care Staff Pty Ltd and Ors [2025] WADC 117

ETHICS AT PRE-TRIAL CONFENCES AND MEDIATIONS

It should take none of you by surprise to learn that the principal business of the District Court of Western Australia exercising civil jurisdiction is Pre-trial Conferences and Mediations rather than Trials. What may surprise you is that in 2022/2023 of the 5,775 civil actions dealt with by the District Court of Western Australia only 36 or 0.6% were resolved at Trial. This should be compared with 2018/2019, where of the 5,217 actions dealt with by the Court only 88 or 1.7% were resolved at Trial. See Report on Civil Cases in the District Court of Western Australia 2018/2019 to 2022/2023 at 8. There is a distinct downward trend in resolving disputes at Trial. There are a multitude of reasons as to why this is the case but anecdotally the two principal reasons are the high cost of taking an action to Trial and secondly, the increased emphasis and importance placed on Pre-trial Conferences and Mediations by the Court Administration.

Rules 35 to 35A and 39 to 41 of the Rules of the District Court of Western Australia prescribe the procedures that are to be followed at Pre-trial Conferences and Mediations.

The essential difference between Mediation and Pre-trial Conference is that Mediation is a consensual process whereas Pre-trial Conference is obligatory.

Both procedures require the parties to the action or their authorised representatives to be present at the conference (see r40 (1)).

Where it is impractical for the parties to be physically present, the Court is usually amenable to ordering that the process be conducted by the party’s legal representative provided the absent parties remain in telephone contact to give instructions.

R 40(3) requires the parties to act in good faith to attempt to settle the case or failing settlement, to resolve as many of the issues between them as possible. The significance of this rule is that it emphasises the need to use the PTC process to narrow the issues and therefore ensure that if the action proceeds to trial the court is not burdened with unnecessary evidence and the concomitant waste of court time.

R 41(1) provides that anything said, or any admissions made in the course of the pre-trial conference is not admissible at the trial of the case save for applications for costs arising out of the conference or for any agreements recorded in writing by the presiding court officer.

The fact that negotiations are conducted on a without prejudice basis does not discharge or shield a legal practitioner from their duty to conduct negotiations in a fair, honest and trustworthy manner.

This point was highlighted in the case of Legal Profession Complaints Committee and Chang [2019] WASAT 67.

The practitioner, who was acting in her capacity as a registered migration agent, fell into dispute with her client concerning an application for a permanent residency visa. The client terminated the practitioner’s instructions and demanded a refund of $10,000 in anticipated fees. To fend off the client’s claim to a refund, the practitioner represented to the client that she had notified her professional indemnity insurer seeking indemnity cover. No such notification had been made. The client subsequently commenced proceedings against the practitioner in the Magistrates Court seeking $10,000 plus costs. During the course of the proceedings the practitioner attended several pre-trial conferences in which she repeated her representations to the Claimant that insurers had been notified thus preventing her for engaging in settlement negotiations. The practitioner’s identical representations to the Magistrates Court were also false. In disciplinary proceedings brought by the Legal Profession Complaint’s Committee, the practitioner’s Counsel objected to the admissibility of what the practitioner had said to the Court during pre-trial conferences on the basis that those statements were privileged under s 27(3) and s37(20 of the Magistrates Court (Civil Proceedings) Act 2004 WA. 

Section 27(3) provided that: –

“ Anything said or done by a party for the purposes of attempting to settle a minor case is taken to be said or done without prejudice to any evidence or submission that the party …. May subsequently adduce or make, in respect of the proceedings. “

Section 37(2) provided that: –

“[e]vidence of … anything said or done … in the course of, or for the purpose of, attempting to settle a case by compulsory mediation … is not admissible in any proceedings before any court, tribunal or body.”

The Tribunal found, as a matter of construction, that neither of these provisions were able to provide the practitioner with the protection from disclosure that was sought. Firstly, the Tribunal held that the provisions only applied to compulsory mediation. Secondly, the Tribunal held that the representations made by the practitioner were not made for the purposes of attempting to settle a minor case but were made to prevent settlement. Thirdly, the Tribunal held that the inadmissibility of evidence did not apply to professional disciplinary proceedings brought by the Committee against the practitioner in the Tribunal. Fourthly, the Tribunal determined that even if it were necessary to balance the competing public interest in facilitating the settlement of legal disputes without the need for litigation, on the one hand, and the protection of the public in their dealings with legal practitioners on the other, the latter public interest would prevail. 

The practitioner unsuccessfully appealed the findings of the Tribunal on the issue of admissibility. The Court of Appeal held that a legal practitioner who deliberately makes false and misleading statements in without prejudice negotiations (whether on behalf of himself or herself or a client) cannot be shielded from allegations of professional misconduct simply by asserting the existence of without prejudice privilege.

The Pre-trial Conference/ Mediation procedure may give rise to interactions with possibly four parties, namely: –

  1. The client,
  2. The opponent,
  3. The Court and
  4. Instructed Counsel.

Whilst your obligations to act ethically with all four parties remains constant, your dealings with each party are different and require different skills and requirements.

The Client

Given your fiduciary relationship with the client, it is a given that prior to embarking on the Pre-trial Conference/ Mediation process you need to have advised your client as to the issues to be determined and the merits and weaknesses of your client’s case. As there is an express requirement to keep your client informed as to the costs that have been incurred up to the time of conference and the likely costs of proceeding to trial, the advice will necessarily include a cost/benefit analysis. It is only when a comprehensive advice has been provided that the client can make an informed decision in instructing you to negotiate on their behalf. The advice should also provide an explanation of what is involved in the Pre-trial Conference/Mediation process and what likely results are expected. It should be made clear to the client that if settlement can be achieved at Pre-trial Conference or Mediation, the action will be at an end and there will be little possibility of reopening the case in an endeavour to seek more by way of compensation. Ideally, the advice to the client should be in writing as verbal advice leaves the practitioner open to challenge in circumstances where a client subsequently experiences “settlement remorse”. 

Having provided the client with appropriate advice, it is important to ascertain from the client their objectives and expectations. It must always be remembered that it is the client’s case, and they must ultimately decide how to proceed. If the client wants their day in court, it is their entitlement, and prerogative.

As most personal injury cases are resolved at Pre-trial conference, here are a list of my Do’s and Don’ts when representing plaintiffs.

The Do’s and Don’ts in representing Plaintiff’s at Pre-trial Conference

  1. Obtain the client’s written instructions before making an offer of settlement. Some practitioners perform this function by writing an offer on a sheet of paper from a note pad. I prefer making an offer of settlement on a specifically drafted proposal form where all heads of damage are displayed and there is provision for the opposition to respond. This method has the advantage of enabling the client to clearly see and understand the opposition’s assessment of the claim. It also acts to focus attention on those heads of damage which are hotly contested thereby requiring further explanation and possibly further evidence.
  2. Do not force, coerce or cajole a client into making, accepting or rejecting an offer of settlement. The negotiating process should be performed in a consultative manner with the client being the arbiter of any proposal made to the opposition.
  3. Do not place any time constraints on the client’s decision making. If the client requires time to consider their position, this request should be accommodated by conferring with and seeking the approval of the opposition.
  4. Do not invite the client to accept a proposal of settlement in circumstances where the client expresses anxiety or confusion. Seek an extension of time to ensure that the client accepts a proposal when clear headed.
  5. If the client elects to settle the claim, ensure that the client’s interests are adequately protected by the machinery of settlement by authority or Deed as the case may be. Some year ago, the Principal Registrar of the District Court circulated an authority amongst personal injury practitioners which provided the bare minimum terms of settlement which acted as an aid memoire to practitioners as to the matters that needed to be raised with clients before settlement was effected. The authority is still relevant as to the matters it covers and is therefore still useful. I have attached a copy as an annexure to this paper.

The Opponent

In dealing with your opponent, Rule 4.1.2 of the Solicitors’ Conduct Rules require you to be honest and courteous.

The central goal of your dealings with your opponent is to persuade them to accept your client’s proposal of settlement. The goal is best achieved by thorough preparation of your client’s case, by mastery of the brief and the application of correct methodology in calculating loss and damage. Getting on top of your brief will provide you with a level of confidence to place you in a strong negotiating position. A Pre-trial Conference is not an appropriate venue for taking technical and petty points. Nor is it or should it be a time for hubris. One should never subordinate your client’s interests for professional pride and one upmanship. The application of self-control, patience and a professional level of detachment is one pathway to discharging your duty in a courteous and ethical manner.

The Do’s and Don’ts of engaging with your opponent at Pre-trial

Conference

  1. Listen carefully to your opponents’ arguments in support of their client’s case theory.
  2. Respond to your opponents’ arguments in a logical and clinical manner having regard to the anticipated evidence.
  3. If errors or flaws are revealed in your client’s case, take instructions from your client and with your client’s authority concede such errors.
  4. Do not attempt to brush aside such errors by bickering or pettifogging with your opponent or by providing a superficial or ill-considered response.
  5. Under no circumstances deceive or mislead your opponent as to the existence of evidence to alleviate their concerns. Such unethical conduct will not only undermine your own credibility and reputation but will also reflect badly on your client. 
  6. Your duty of candour and honesty does not require you to disclose to your opponent weaknesses in your client’s case.
  7. Your duty is to promote your client’s interests fearlessly but subject to your overriding duty to the Court.
  8. In circumstances where an impasse arises between your client’s position and that of your opponent, you should, with your client and opponent’s consent, prevail upon the presiding court officer to act as an intermediary. The presiding court officer can inject a level of objectivity into the negotiating process by scrutinizing each party’s position and teasing out solutions to perceived intractable differences.  

The Court

In dealing with the Court, Rule 19.1 of the Solicitors’ Conduct Rules require you to not deceive or knowingly or recklessly mislead a court.

In utilizing the services of a Court Officer in a Pre-trial Conference, it is again important that the information provided to the Court Officer is factually accurate and in accordance with your client’s instructions. When a Court Officer is engaged, it is the usual practice for the Court Officer to speak to each of the parties separately and confidentially to understand the nature of the dispute and the specific issues that are inhibiting settlement. Once the Court Officer is appraised of the situation, a decision is then made as to whether the impasse can be resolved by way of “shuttle diplomacy” or by convening a meeting between all parties presided over by the Court Officer.  

The Do’s and Don’ts of engaging with a Court Officer at Pre-trial

Conference

  1. The engagement of the Court Officer should be carried out observing the formality of the Court Officer’s role and the formality of the process.
  2. Information imparted to the Court Officer should be imparted in the presence of the Court Officer with the client’s acknowledgment as to the accuracy of the information provided.
  3. Any proposals of settlement to be communicated by the Court Officer should be made in writing and signed by the client.
  4. If settlement is achieved, the terms of settlement should be confirmed in writing with the Court Officer.
  5. If settlement is to be effected by Deed, a meeting of all parties should be convened before the Court Officer to firstly, confirm the terms of settlement and secondly, to make all necessary court orders to implement the settlement.

Instructed Counsel

In circumstances where Counsel is briefed to represent a client at Pre-trial conference or Mediation, it is important to set out with precision what you want Counsel to do. A competent brief will include a summary of the facts and issues in dispute, details of any previous negotiations and the results of any legal research undertaken to address legal issues impacting the claim. It goes without saying that the brief should contain all documents necessary for proper representation. Every Bar Association in Australia details the requirements for briefing Counsel. In my opinion the most helpful is that provided by the New South Wales Bar Association which provides a check list and templates as to what is required. Whilst this comment may seem self-evident, an inadequately prepared brief almost inevitably leads to delays, increased costs and unhappy clients.

The Do’s and Don’ts of engaging Counsel at Mediation or Pre-trial

Conference

  1. Before formally retaining Counsel, discuss the case with Counsel to provide a brief background to the case and to ascertain whether there is any conflict of interest. Counsel’s availability to attend the conference and fee arrangements should be sought,
  2. In sending a formal brief to Counsel, provide a covering sheet which should detail what your precise instructions are and the date and time of the Mediation or Pretrial Conference,
  3. The Brief should provide a summary of material facts, a chronology of relevant events, the principal issues to be determined and any legal research undertaken to determine the issues,
  4. The Brief should be arranged in chronological and logical order and divided into separate sections including pleadings and court documents, witness statements, expert reports, discovered documents and relevant correspondence.
  5. In the era of digitization, it has become fashionable to e-mail to Counsel the entire client file under the heading of Brief to Counsel. This practice signifies the absence of intellectual rigour and a sloppy attempt to transfer ownership of the case to Counsel. I recently received a digital brief containing several thousand non indexed documents. When I enquired as to the whereabouts of company searches I was helpfully informed that they were in my brief.
  6. After providing Counsel with sufficient time to consider the Brief, a meeting should be arranged with Counsel, to obtain Counsel’s assessment of the case and identify any further information that Counsel requires to place the case in a state of readiness for Conference.
  7. A few days before a Conference a further meeting should be arranged to enable Counsel to confer with the client to discuss the case in general and to formulate a strategy for negotiating a possible settlement. At this meeting, the client needs to be informed of the principal issues in contention, the likely attitude and offers to be made by the opposition, and the options available to provide the client with the best result.
  8. During the Conference, a consultative approach should be taken with Counsel, whilst enabling Counsel to be the principal spokesman with the opposition.
  9. At all times the Conference should be conducted in a courteous and temperate manner.
  10. If you have a difference of opinion with Counsel, this should not be aired in front of the client but should be discussed and resolved in private session.
  11. A  Pre-trial Conference or Mediation Conference is not a venue for light-hearted banter or comedy and should always be avoided.
  12. If an agreement is eventually reached at conference, you should confer with Counsel and the client to ensure that there is an accord as to the terms of the agreement. In circumstances where the agreement is to be effected by Deed, a written heads of agreement should be drafted.  

As this paper hopefully demonstrates the obligations cast upon lawyers in discharging their duties, set them aside from other occupations and professions. Not only are lawyers required to provide a high standard of service but they must do so with a commitment to intelligible principles of right and wrong. The lawyer’s adherence to these ethical principles may on occasions transcend the lawyer’s duty to their client.

Raoul Cywicki

Sir Clifford Grant Chambers

      19 February 2025