Advocates immunity up for review in the High Court … Justice John Byrne challenges his mother’s $17 million estate … Carol Cunneen has her say about sister Margaret
ADVOCATES beware – your immunity is slipping. The High Court is to cast fresh eyes over this in-house protection scheme in early November.
They’ve all gone and a new crop will hear an appeal from NSW in Attwells & Anor v. Jackson Lalic Lawyers Pty Limited – French, Kiefel, Bell, Gageler, Keane, Nettle & Gordon.
Melbourne barrister Stephen Warne has covered the main issues in his excellent Lawyers Lawyer blog.
Justice Hormones Harrison considered the application of the immunity in this case and could not finally determine the question:
“Notwithstanding all of the above, there remain at least two related matters that in my opinion are particularly troubling in this case, and which directly intersect with the way in which I am able to dispose of this application.
The first matter is the apparent or potential strength of the plaintiffs’ allegations that the defendants have been negligent. As I have already commented, the plaintiffs would have been substantially better off if they had simply not defended the proceedings.
The predicament that the judgment created for them is difficult to explain but even more difficult to understand. It is also difficult not to have a sense of unease about the possibility that an egregious error may go without the prospect of a remedy.”
In part, the alleged negligence related to the form of consent orders in an out-of-court settlement that was agreed in a case brought by a bank against a guarantor, while the trial was underway .
The guarantee was for an amount of $1.75 million, but the out-of-court settlement resulted in orders for the entire debt of $3.4 million.
Judgment was entered for an amount almost double that if the case had gone to judgment.
The Court of Appeal said the advice was covered by the immunity as it led to the guarantee proceedings being settled and was therefore intimately connected with the litigation.
Further, negligence proceedings would involve re-agitation of the issues in the guarantee proceedings and therefore would offend the principle of finality.
Here’s the special leave transcript, where the applicants crystallised the issue as an “error of law in the application of the advocates’ immunity to negligently advised settlements in contradistinction to judicial proceedings determined upon the merits either by a jury verdict or by a judge”.
It was great to see Queensland’s senior judge administrator John Byrne back in the headlines with a story in the Daily Rupert that he and his brother Robert are chasing a bigger chunk of their mother’s $17 million estate.
Mum, Neva Byrne, died last year aged 89 and left most of her estate to the University of Queensland Vet School, with other amounts to the RSPCA, Salvos and the Anglican church.
According to the story under the headline “Give me some of Mummy’s millions”, a 1995 will left John Byrne with a life interest in a Toowoomba property, while Robert got nothing much at all.
An affidavit from Justice Byrne said his mother underwent a change of mind after Bru, her Boston terrier, died while having its teeth cleaned.
Byrne said:
“There was to be no financial support for the veterinary school after Bru died there.”
He said that in 2013 his mother gave instructions for a new will in which there was roughly a half-half distribution between the judge and Robert, including Robert’s children.
It was not signed before Neva died.
Apparently, mother did not approve of her sons’ choice of women.
In his affidavit Justice Byrne said from when he was six years old his mother sang to him a song which “foretold the chilling reception that any female I took up with could expect”.
His mother disapproved of his first marriage and would not allow his current partner, Jennifer Coleman, to attend his father’s funeral.
The judge has current assets of $8.84 million and can expect a fortnightly pension of $10,016 when he retires from the judiciary.
Robert Byrne worked in the family’s business, manufacturing pyjamas and nighties.
Carol Cunneen wants it widely known that she had nothing to do with prompting the ICAC investigation into her sister, NSW crown prosecutor Margaret Cunneen.
And she has proof – in the form of written reassurance from Roy Waldron, ICAC’s solicitor.
Margaret Cunneen has propagated the notion that it was her sister who dobbed her into ICAC, allegedly for attempting to pervert the course of justice in relation to a car accident involving her son’s girlfriend, Sophia Tilley.
Her allegation against Carol first arose in a strange and misplaced reply to a letter from a member of the public, critical of Margaret for impacting adversely on ICAC’s valuable work. Replying to the letter the crown prosecutor wrote:
“Thanks so much for your love and support which I appreciate so much.
It is indeed amazing that these people don’t realise that my dear Sophia doesn’t drink (her blood test was 0.00) and the crash was so bad that the car was written off. Isn’t it good that all the independent bystanders said I did absolutely nothing wrong?
What a malevent [sic] person my long-estranged sister is to take the bare bones of the terrible crash that my father told her about and do this to me.
I know you wish for justice and I thank you for that.
I would’ve so glad [sic] to do all I can to advance your professional interests and I do thank you so much for your unexpected love and support.
Sincere thanks,
Margaret”
This letter subsequently became public and Carol Cunneen was keen to rebut the notion that she was the source of her sister’s troubles.
ICAC has now officially confirmed this is not the case. Carol Cunneen told Justinian that she had sent ICAC’s rebuttal to Margaret, but has received no reply.
“I have no idea why she did this. She could have said nothing.”
The question is left open, why would Margaret Cunneen say that her sister precipitated the ICAC inquiry. In fact, the inquiry was passed to ICAC as a result of phone taps undertaken by a multi-agency taskforce investigating organised crime.
Sources close to Margaret Cunneen attacked the Herald’s revelation about the phone taps, falsely claiming that it was a leak from ICAC.
Carol Cunneen said she felt “devastated” that she had been called a “malevent sister [or] vindictive relative”.
“I am now getting close to being disgruntled Carol … I never knew anything about the car accident until I saw media reports of ICAC’s investigation.”
A profile of Margaret Cunneen in The Australian Magazine, reported that she had been “repeatedly sexually assaulted by a neighbour when she was a young girl. The assaults went on for several years until the abuser died.”
Another sister, Louise, said that this was the motivation for Margaret to become a prosecutor.
“… I knew what drove her to want to save other children.”
Carol Cunneen is upset that this makes it seen as though her “beautiful parents look like they were so inattentive they allowed people to interfere with us”.
This was not the case, she said.