LSB September 2022 LR

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CIVIL LITIGATION and the right not to give notice of the criminal defence, carried little weight in civil proceedings, where the defendant is expected to serve a defence, although the privilege could subsequently be invoked where the defendant is being interrogated, compelled to produce documents, or cross examined 14 (similar protection is provided by the UCR in SA). And in Dacorum Sports Trust Limited v Connolly 15 the Judge confirmed that the Defendant has a choice whether or not to remain silent in civil proceedings, but “harshness of such a choice did not provide a good ground for staying civil proceedings”, and even if there is a real risk of serous prejudice leading to injustice if the civil proceedings continued, the proceedings should not be stayed if safeguards can be put in place. Thus the UK courts take a different approach – firstly, that prejudice to the criminal defendant arising from a decision not to plead any or a full civil defence is a strategic decision and no basis for a stay; secondly that revealing possible bases for future criminal defence in a civil defence is of little importance and thirdly, that if a defendant argues that they will be seriously prejudiced if the civil case proceeds, they must explain how and why. Our concern is that applying the principles devised in cases involving defendants being attacked by the same prosecuting authority in both civil and criminal proceedings to more typical cases where the civil plaintiff and the prosecuting authority are not in any way connected has skewed the balance in these decisions in a way that presumptively demands a stay. In our view there is a clear distinction between punitive recovery action imitated by the same authority that is pressing criminal charges, but in the normal case where the civil plaintiff is not in any way connected to or involved in such action. That is not to infer that it should be difficult for a defendant to obtain a stay, rather, that the unique circumstances of the prosecuting authority being the same in both criminal and civil cases with exactly overlapping facts should be seen as a “high point” of the discretion to grant a stay. Our proposition is that the legal culture of determining when stays should be granted in Australia has drifted to implicit assumptions that stays should be readily (and at times even automatically) granted when there is serious risk of criminal investigation or charge. We contend that the more rigorous approach taken in the UK, including the use of varied means of protecting the criminal accused whilst not absolving them of the responsibility of pleading the civil case, creates a more equitable balance in this increasingly important area of civil law. B Endnotes 1 1982 ACLR 202 2 Elliot v Australian Prudential Regulation Authority [2004] FCA 586 at [15] 3 (1993) 12 ACSR 69 at 77 4 Hurley v FCT (1992) 37 FCR 11 at [13]; see also Australian Securities Commission v Kavanagh (1993) 12 ACSR 69 5 Silbermann v CGU Insurance Ltd (2003) 48 ACSR 231 6 Lee v DPP 2009 75 NSWLR 581 7 Adelaide Brighton Cement Ltd v Burgess [2018] SASC 134 8 [2015] HCA 5 9 2009 NSWCA 347 10 [2018] SASC 134 11 In the matter of Plutus Payroll Australia Pty Limited [2017] NSWSC 1854 12 [2018] EWCH 3173 (QB) 13 [2020] EWHC 2536 14 Citing V v C [2002] C.P Rep. 8, Waller LJ at paras 37 and 38. 15 Employment Tribunal 3301877/2020; 3302639/2020 (V) We Are Forensic Experts In • Engineering Analysis & Reconstruction • Traffic Crashes & Road Safety • Workplace or Mining Incidents • Reporting & Experts Court Testimony Delta V Experts • Clarifies the facts in a situation • Scientifically substantiates the evidence • Failure Analysis & Safety Solutions • Physical, Crash, Incident & Vehicle Dynamic Handling Testing DELTA-V EXPERTS • Strengthens your communication • Diverse experience and expertise 03 9481 2200 www.dvexperts.net 9 Springbank Street, Tullamarine, 3043 30 THE BULLETIN September 2022
WELLBEING & RESILIENCE Ageing Well in the Law – A professional wellbeing perspective COLIN BROWN, DIRECTOR, LEGAL & LEGISLATIVE POLICY, SA HEALTH ith age comes wisdom, but “Wsometimes age comes alone!” Oscar Wilde could have been reflecting on the importance of wellbeing and appropriate stress-management as we age through life. Professionally, as we gain experience through the years, we tend to engage with increasingly more stressful roles, matters, and responsibilities. Exploring and developing self-awareness and self-care is a piece of wisdom to keep us balanced as we age and grow professionally. Demographically, the South Australian solicitor workforce tends to be slightly older than other jurisdictions, 1 consistent with South Australia’s higher proportion of older people generally. 2 Nonetheless, with a mean age of just 43 in 2020, it still seems we have youthful solicitors! Perhaps more important than our workforce’s increasing statistical mean-age is the way in which it handles the increasing responsibility and pressure of legal-related work; at both individual and group levels. Biologically and otherwise, ageing is complex. And perhaps unsurprisingly, psychological stress has been identified as a possible risk factor for accelerating ageing. 3 Our political leaders certainly appear to age exponentially after taking the stress of top-office! (think of the beforeand-after photos of Tony Blair and Barack Obama). We probably all have relatable examples within our own professional experience where our colleagues, or indeed ourselves, have felt the exhaustion (if not apparent ‘ageing’) from sustained stressful workloads and responsibilities. While the pandemic also created additional stress for the Australian legal profession, 4 it highlighted the importance of strong local leadership for establishing and maintaining workplace cultures that support managing chronic stress of increased work responsibilities in unpredictable environments. Across the nation, South Australia has one of the largest proportions of solicitors in sole-principal private practice. 5 Helping sole-principal colleagues support themselves as well as their staff is therefore of importance - particularly in circumstances where the funding apparatus found in larger private or government legal practices may not exist. The Law Society’s various wellbeing offerings, such as the Small Practice Committee’s Coffee-Break for Sole & Small Practitioners, are a helpful way of staying connected to other practitioners and debriefing about stressors in legal practice and approaches to managing those. South Australia, compared to other jurisdictions, has a large proportion of newly-admitted solicitors (a year or less). Importantly, South Australian universities continue to supply quality legal education and law graduates to the profession. Graduates find work in private practice, government, and other areas adding excellent value to business and society. These workplaces must strive to provide suitable scaffolds for new lawyers as they begin on their journey of ageing well in the profession. Nurturing and growing their self-care skills is critical for practising law for career sustainability and longevity. The Law Society offers through its membership additional profession-long support, assisting all lawyers to gain and retain the wisdom of self-care. Various networks and opportunities are available, including helpful wellbeing resources and tools, Young Lawyers’ Support Group, as well as Dr Jill’s confidential support service as part of LawCare. Ageing well in the Law is everyone’s responsibility; to ourselves and each other. Please keep an eye out for future events from the Society’s Wellbeing and Resilience Committee. Endnotes 1 2020 National Profile of Solicitors, p.13. 2 Office for Ageing Well, SA Government. 3 Okereke O, Anxiety Linked to Shortened Telomeres, Accelerated Aging, PLoS ONE, 2012 4 K Allman, Pandemic mental health toll on lawyers revealed, Law Society of NSW Journal, 2021. 5 2020 National Profile of Solicitors, p.30. September 2022 THE BULLETIN 31
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LSB September 2022 LR

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