Is this the end of Hipster-looks in the workplace? Kuyken v Chief Commissioner of Police [2015] VSC 204

On 14 May 2015, the Supreme Court of Victoria ruled in Kuyken v Chief Commissioner of Police [2015] VSC 204 that a policy preventing police from having a beard or goatee was valid and enforceable. In this short case analysis I highlight the main points on appeal and discuss whether more anti-Hipster policies are likely to be introduced in other workplaces.

Background

Since 2004, Leading Senior Constable Michael Kuyken had worn a goatee beard. Victoria Police introduced a new Grooming Standard for members of the Victoria Police, which came into effect on 1 January 2012. The new policy specified that beards and goatees would not be permitted, and had statutory status from 1 July 2012 due to section 5(2) in the Police Regulation Act 1958 (Vic).

The complaint to the Victorian Civil and Administrative Tribunal (“VCAT”)

Sixteen members of Victoria Police, including Senior Constable Kuyken, made complaints to VCAT in September 2012. Kuyken’s claim included the following allegations:

1.       Direct discrimination contrary to s18(d) of the Equal Opportunity Act 2010 (Vic) which concerns discrimination by employers against employees;

2.       Victimisation contrary to s104 of the Equal Opportunity Act 2010 (Vic);

3.       Breach of s38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), as Victoria Police allegedly failed to give consideration to relevant human rights in making the policy, being freedom of expression (s15).

The Tribunal addressed the arguments as follows, with numbers correlating to the above paragraph:

1.       Direct discrimination that occurred after 1 July 2012 was permitted by section 75 of the Equal Opportunity Act 2010 (Vic). Section 75 permits discrimination if the discrimination is necessary to comply with statute. The email sent prior to 1 July 2012 that threatened Kuyken with disciplinary action was found to constitute discrimination by the Chief Commissioner against the plaintiff.

2.       There was no victimisation, as Kuyken failed to establish the detriment element required.

3.       The Tribunal found that facial hair was not a form of protected freedom of expression under s15, as a “reasonable member of the public” would not consider having a beard or goatee to convey any meaning such as for example a “desire to be an individual rather than an automaton”.

The points of law on appeal

The main point on appeal concerned section 5(2)(c) of the Police Regulation Act 1958 (Vic). Kuyken asserted that consistent with s32 of the Charter, section 5(2)(c) of the Police Regulation Act 1958 (Vic) should be interpreted consistent with its purpose, in a way that does not permit discrimination. Section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) states “so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights”.

Kuyken argued that if s32 of the Charter is correctly applied, the Police Commissioner cannot enforce the grooming standard determination in a way that permits discrimination. Such an interpretation would mean the Police Commissioner could only make determinations on the neatness and cleanliness of facial hair, but not determinations on the complete removal of facial hair.

Supreme Court decision – Garde J 

Garde J analysed section 5 of the Police Regulation Act 1958 and found parliament had intended police standards to be discriminatory, as the standards “turn, on attributes such as sex, gender, identity, physical features, religious beliefs or activities” (at [66]). Section 75 of the Equal Opportunity Act would therefore apply, and the discrimination is permitted, as the statute is essentially discriminatory and was intended to be discriminatory by parliament. Garde J also held that “grooming” extends to removal of all hair, so the Police Commissioner can validly make directives that all facial hair be removed. At paragraph 67(2) of the judgment, Garde J writes “the power to impose ‘standards of grooming’ extends to a power to change, modify or remove the appearance or presentation of uniform, equipment, hair including facial hair and accessories generally”.

Effect of the decision

Victorians will no longer see any bearded or goateed police patrolling the streets, as the directive and associated legislation was found to be valid.

Will this decision create a domino effect of workplace policies preventing employees from wearing beards or goatees?

The circumstances of Kuyken v Chief Commissioner of Police [2015] VSC 204 are unusual. The standards were mandated by specific legislation. The employer was a public authority and the Police Commissioner had special powers under statute. There were exceptions in the grooming directive for genuine medical, religious or cultural grounds. The case also hinged on provisions in the Charter of Human Rights and Responsibilities Act 2006 (Vic). Most other Australian jurisdictions do not have an equivalent.

A private sector employer could not adopt such a policy completely preventing beards or facial hair without risk of discrimination claims.

Conclusion

While there may be scope for public sector entities with the backing of enabling legislation to implement similar “grooming directives”, outside of this narrow sphere, such restrictive policies are unlikely to appear. In the private sector at least, we are likely to continue to see Hipster-looks at work for the foreseeable future. 

Giving legal advice in social situations – beware the oral and implied retainer

Lawyers are natural problem solvers and often hand out legal advice in social situations to friends, family members and strangers. Junior lawyers are often even more enthusiastic to dispense their view on how the legal problem could be solved. While the advice may be dispensed in a casual environment such as at a party, BBQ or function, lawyers should be aware of the possibility of unintentionally creating an oral or implied retainer in these situations.

How is an oral retainer formed?

A “retainer” is a contract for the provision of legal services that underpins the lawyer-client relationship. After the retainer comes into existence, a number of lawyer duties to the client arise including the duty of care. Usually the retainer is in written form. However, a retainer can be formed orally, for example, in a discussion where client and lawyer outline an agreement.

If there was no discussion of costs or payment, this is not necessarily fatal to an oral retainer. Courts strive to uphold agreements such as retainers, especially in a commercial context, and have assumed a lawyer would be renumerated according to their standard fee structure (QCoal Pty Ltd v Cliffs Australia Coal Pty Ltd [2010] QSC 479 at [22]).

Example: You are at a family gathering and your Uncle comes to talk to you about his 4 year old son Johnny, who slipped on some steps at kindergarten and injured his head near his ear. Johnny had to have stitches and an ENT specialist advised that although there was no immediate damage to Johnny’s ear, there is the risk that balance and hearing issues could arise as Johnny grows up. You tell your uncle that he should commence action on behalf of his son in the NSW Supreme Court to put the kindergarten’s insurer on notice. This would enable action later if anything adverse arose from Johnny’s injuries. You know you shouldn’t do legal work for family members, but given the simplicity of the task, you offer to prepare and file the court documents. Your Uncle accepts your offer.

An oral retainer may be found to exist in this situation, despite having no discussion about costs or payment, as a court may imply that you would be paid according to your normal rate or according to the rate you normally charge family members.

How could an implied retainer be formed?

In the absence of express words, a retainer can be formed from the implied or inferred conduct of the parties in the circumstances. The existence of the retainer will be implied from the conduct of the parties. The actual terms of the retainer will somehow then have to be proved by the party relying on the retainer. The court will examine the objective facts to determine if an implied retainer exists. The lawyer’s belief as to whether the person is a client will not be too persuasive (Burke v LFOT Pty Ltd (2000) 178 ALR 161 at [81]), but the reasonable expectations of the alleged client is often given significant weight.

Proving the existence of the retainer

The retainer must be proved by the party seeking to rely on the contract, with courts focusing on consensus ad idem (agreement). Agreement does not have to be evidenced in writing, and can be formed orally or by the conduct of the parties.

You may have already identified consideration may be an issue when the alleged retainer was formed in a social situation. However, consideration is not vital for the formation of a retainer. It has been suggested that consideration flowing from the client is not essential for the creation of a retainer.

There are a few evidentiary difficulties that may arise in proving the existence of an oral or implied retainer:

1.       The party attempting to establish the retainer will have to ensure the relationship is not characterised as “prospective lawyer” and “prospective client”. Where the parties understood the relationship to be potential, as opposed to actual or implied, no retainer can be found to exist.

2.       If it is the lawyer’s word against the client’s courts are more likely to accept the client’s version of events. This principle is taken from Griffith v Evans [1953] 1 WLR 1424 where Denning LJ stated “the words of the client is to be preferred to the word of the solicitor”, as “the client is ignorant and the solicitor is, or should be, learned”.

3.       The passage of time can make it difficult for parties to recall events in detail.

What are the consequences if an oral/implied retainer is found to exist?

If a retainer is found to exist, you will be expected to have undertaken the relevant work and discharged all of your lawyer-client duties. The client will also be able to commence action for professional negligence against you.

If there is no retainer, are there any consequences of giving legal opinions in these situations?

In the case of Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42 at [157] it was held that prospective clients are owed a duty of confidentiality. If a person is telling you about their legal problem at a party, asks about your rates, and decides to go elsewhere, you must keep the details of their legal problem and the fact they approached you confidential.

It is also possible that behaviour towards potential clients could constitute unsatisfactory professional misconduct under section 496 of the Legal Profession Act 2004 (NSW), as there is no requirement for a retainer to exist. For a lawyer to come under the definition of “unsatisfactory professional conduct”, the lawyer’s conduct  must have occurred “in connection with the practice of law” and must falls short “of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”.

But I was doing the work/providing the advice pro-bono...

Consideration flowing from the client is not essential for a retainer to form. The principles discussed above therefore apply equally to pro-bono work (see Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42). An important point to note is that if you are taking on the work “pro-bono”, you must afford your client the same level of skill and knowledge you would provide a paying client. McCallum J succinctly made this point in Moss v Eagleston [2014] NSWSC 6 at [81]:

"The degree of care and skill required in the performance of a professional task cannot logically be informed by the extent of remuneration which the lawyer agrees to accept for the agreed task. The task is the same in any case. No lawyer is obliged to undertake work on a pro bono basis, but those who choose to do so must in my view be held to the same standard of care as those who request payment for their services."

Conclusion

Lawyers should not undertake any work for a client without a written retainer. While it is difficult evidentially for an alleged client to establish an implied or oral retainer exists, it is not impossible, and courts tend to favour the client’s version of events where all else is equal (Griffith v Evans [1953] 1 WLR 1424 at 1428). If you think your casual discussion is getting detailed to the point an oral retainer may be arguable, make it clear to the person you are talking to that you have not come to an agreement about providing legal services at that point. As a lawyer, you must correct any mistaken beliefs. In the case of Stringer v Flehr & Walker (2003) Aust Tort Reports 81-718, Philippides J highlighted that a lawyer should take steps to dissuade a person from the belief that the lawyer acts for the person. If you are in a social situation, and feel you must give your opinion on a legal problem, make sure the person you are talking to is not mislead about your relationship.  

Limitation Periods - a trap for young players

Junior lawyers are frequently warned by their supervising solicitors to watch out for limitation periods. However, this warning is rarely accompanied by training on limitation periods or what to say to your client. In this article I explain where to go to find the relevant limitation period and suggest appropriate steps to advise your client and avoid professional negligence liability.

What is a limitation period?

A limitation period is a time frame within which a certain cause of action must be commenced in a court. After the expiration of the relevant time period, legal action cannot be brought.

Where can I find the relevant limitation period?

Limitation periods can be found in both statute and contract:

1.       Statute

In NSW the main statute of limitation is the Limitation Act 1969. Section 14 is the general limitation provision and provides that for causes of action founded in contract and causes of action founded in tort are “not maintainable if brought after the expiration of a limitation period of six years”.

It is very important to know the correct cause of action because apart from this general rule for contracts and torts there are exceptions and special rules for almost every cause of action. Some examples:

a.       Defamation – limitation period of 1 year running from the date of publication – section 14B Limitation Act 1969 (can be extended to 3 years by a court under section 56A).

b.      Action under a Deed – limitation period of 12 years running from the date on which the cause of action first accrues – section 16 Limitation Act 1969.

c.       Recovery of land – limitation period of 12 years running from the date on which the cause of action first accrues – section 27 Limitation Act 1969.

d.      Redemption of property in possession of a mortgagee – limitation period runs from the later of the date at which the mortgagee last goes into possession of the property or the date at which the mortgagee last received a mortgage payment – section 41 Limitation Act 1969.

e.      Personal injury action – a complicated regime where the limitation period runs from whichever of the two periods is first to expire:

a.       The “3 year post discoverability limitation period” running from when the cause of action is discoverable; and

b.      The “12 year long-stop limitation period” running from when the time of the act or omission that led to the injury/death (can be extended by the court).

Not all limitation periods are contained in the Limitation Act 1969. Limitation periods in specialist fields like insurance and employment law are found in the “mother Act” of that field such as the Fair Work Act 2007 (Cth) which specifies a 21 day limitation period for commencing unfair dismissal claims.

2.       Contract

Some limitation periods can be found in contract. Contractual limitation periods are common in the insurance and building sectors. The contract may specify that a claim needs to be made within a specific time period, ie that “any claim must be made within 30 days of the purchaser becoming aware of the claim”.

Law Cover has a very useful “Schedule of Limitation Periods” which shows where you should look to find the limitation period for your relevant cause of action (http://www.lawcover.com.au/schedule-of-limitation-periods/). While this guide is useful, it is not a substitute for you as a lawyer checking the primary source. Limitation periods in areas such as employment law change frequently. Do not get caught out. Check the primary source.

Finding the start date and end date of the limitation period: When does the cause of action accrue?

For general contract and torts claims under section 14 of the Limitation Act 1969, the cause of action runs “from the date on which the cause of action first accrues to the plaintiff”. Generally, the cause of action first accrues at the time the breach of contract occurs (Sheldon v McBreath (1993) Aus Torts Report 81-209). There are exceptions to this including money loans payable on demand.

Money loans payable on demand

A money loan payable on demand will exist where no time for repayment has been specified or the loan is stated to be payable “on demand”. This type of money loan is most common between friends and family members who have not sought prior legal advice, as usually there is some sort of arrangement about when the money is to be repaid. Loans payable on demand create an immediate debt. The lender’s cause of action begins when the loan is made. Money loans are subject to a 6 year limitation period from when the borrower receives the money. In practice, this means the borrower does not have to repay the loan once six years has passed.

How to appropriately advise your client

1.       Mention limitation periods straight away

A typical way lawyers are caught out is when a client wants to pursue a claim but pulls out after given an estimate of costs to pursue litigation. At this point lawyers may have often advised on the likelihood of success only. The same client could return in a few years time having decided to pursue their matter in court. You did not advise on the limitation period at first instance, which could lead to a professional negligence claim if the limitation period has expired.

How to avoid this? ALWAYS advise on limitation periods at first instance. Even if your client is talking to you on the phone and you are not yet sure what the cause of action is, let the client know that limitation periods do apply, and depending on the cause of action, your client could be in or out of time. Advise of the length of the limitation period and the effect – ie “once the period has expired you will be statute barred from pursuing your claim”.

2.       Make a file note of the conversation

ALWAYS make a file note when you advise a client on a limitation period over the phone or in person. You could even write a letter or email to your client referencing the conversation, the causes of action discussed and the relevant limitation period.

Help! The limitation period expires in three days. What should I do?

You can only apply for an extension of the limitation period in certain circumstances such as if the claim is a personal injury or defamation matter. Advise your client that an application for an extension of the limitation period may not be successful. The safest course of action at this point may be to commence proceedings.

Commencing action in the appropriate court will preserve your position and make sure your client gets in within the limitation period. To commence proceedings you will have to file a Statement of Claim in the appropriate court.  

Is it time for more law graduates to consider in-house roles?

What is an in-house lawyer?

In-house lawyers are directly employed by the company they work for. They undertake the legal work and assist with risk identification and management for the company. Often sitting physically close to the CEO, COO and management team, in-house lawyers are often expected to provide immediate or timely legal advice on a wide range of issues. In-house lawyers will assist a wide range of teams within the company including operations, human resources and marketing. While this blog post is about private sector in-house opportunities, there are also public sector in-house opportunities at both a state and Commonwealth level.

What is so good about working in-house?

1.       Focus on one client

Having only one client means that in-house lawyers can build impressive client knowledge. Parts of the company rely on in-house lawyers before they can progress, and being able to see the impact of your work is satisfying. Client access to lawyers can cause high-pressure environments, as in-house lawyers often have nowhere to hide as they are physically close to their internal clients. However, working on the commercial front line can be immensely rewarding, as the impact of your advice can be seen.

2.       Close contact with the business side of the company

This close contact with the company means in-house lawyers have a real influence on the business side of the company. In-house lawyers are the legal part of a diversified wider environment within the company. Working in-house is a great option for lawyers who want to work with a wide range of non-legal professionals.

3.       A wide variety of legal work

While the General Counsel usually specialises in advising the CEO, COO and management team and managing large emergencies, a junior lawyer working in-house will be expected to help out in all areas including litigation, debt recovery, employment and industrial relations, competition law, and intellectual property. In-house lawyers must develop an ability to advise on a wide range of areas, and this can be a welcome challenge for some.

4.       A small team environment

 Teams in-house are generally smaller than specialist teams in law firms and offer the opportunity to work more closely with colleagues.

5.       Independence and self-reliance

In-house lawyers are generally very busy trying to keep on top of the regulatory requirements of the company and their usual case load from internal clients. As a junior lawyer you will receive supervision, but will be required to be much more autonomous than if you were working at a law firm. This is great for building self-confidence and the ability to problem solve.

6.       Rewarding to see outcomes of your work

Being able to see the outcome when problems are resolved with your legal input can be very positive and lead to high work satisfaction. In law firms you can miss out on this key step, as outcomes are reported to you second or third hand through your supervising Partner. Those working in-house have also reported higher feelings of collaboration that come with working intensely with internal clients to achieve common company goals.

7.       Involvement in legal issues from an early stage

Law firms often only become involved in legal issues at a late stage. Working in-house, you can be involved in the legal process from the very beginning of an internal legal inquiry to the end.

8.       Requires forward thinking and creativity

With the increased focus on risk management, in-house lawyers will be expected to foresee certain legal problems and assist to stop them before it happens. Forward thinking and creative thinking are encouraged.

Watch out for:

1.       Conflict between your duty to your employer and your duty as a lawyer

It is possible that while working in-house there can be a conflict between your duty to your employer and your duty as a lawyer. Rule 4.1.4 of the NSW Professional Conduct and Practice Rules 2013 provides that “A solicitor must also:...avoid any compromise to their integrity and professional independence”. In the event of a conflict between a duty to the employer and a duty as a lawyer, the duty you have as a lawyer must prevail.

2.       Legal professional privilege

For legal professional privilege to apply to communications, an in-house lawyer must have been acting in their capacity as legal advisers. Keep this in mind if you are starting in an in-house role, as at times you may be asked to work on matters that could be better described as business matters rather than legal matters. Legal professional privilege may not apply to these communications unless specific steps are taken.

Debunking the myths:

Myth 1: Working in-house is less work than working at a law firm

While the nature of the work you are doing may vary, most in-house lawyers work just as hard or harder than lawyers at law firms. Working in-house is definitely not the softer or easier option.

Myth 2: Working in-house will give you better access to life outside of work

Working in-house will not necessarily give you better work/life balance than working at a law firm. Work/life balance varies between different in-house teams as much as it does between different law firms and practice groups.

But are there in-house positions for law graduates?

Traditional in-house teams are headed by a General Counsel who has 20+ years of experience and is usually ex-top tier where they were Managing Partner for 10 years before moving in-house. The rest of a typical in-house team is made up of experienced lawyers who spent time working at a law firm before moving in-house. These more experienced lawyers are usually poached from panel law firms. Traditionally there were no real roles for law graduates or junior lawyers in-house.

This has now changed due to two trends:

1.       The increasing size of in-house teams. There has been a trend to increasing the size of in-house teams as the regulatory load on companies has become more complex and there has been an increase focus on risk and liability; and

2.       The increasing budgetary constraints on in-house teams. Post GFC, companies have tightened budgets in most departments including the legal budget. In-house teams have become more selective when briefing panel law firms and do more of the legal work themselves. They are also more likely to brief barristers directly in litigation matters. This has led to in-house teams needing to do more “ground-work” and has led to an increased need for junior lawyers and law graduates in in-house teams.

In-house opportunities do exist for law graduates. You just have to be vigilant in finding the opportunities. Unlike graduate recruitment for law firms that happens in March/April annually, in-house opportunities are advertised whenever the company has a need. Companies as diverse as the Commonwealth Bank of Australia, Metroll Group, David Jones, and Lend Lease have all recruited in-house junior lawyers or graduate lawyers this year. Due to the competitive nature of these positions, recruiters usually expect their graduates to be admitted and have prior legal experience. If you are thinking of applying for an in-house role, be sure to regularly check Lawyers Weekly jobs, Linked In jobs, as well as Seek and other general recruitment websites for openings. Good luck!  

Your client tells you they are “guilty” but wants to plead “not guilty”. What should you do?

This is the classic case in criminal law of potential conflict between your duty to the court and your duty to your client. I initially thought you would have to advise your client they must plead guilty or cease representing the client. But this is the wrong answer. Your client can still plead “not guilty”, you will just have to be careful not to mislead the court. The starting point is to know the substance of your duty to the court and your duty to your client.

Duty to the court

Section 33 of the Legal Profession Act 2004 (NSW) describes admitted lawyers as officers of the Supreme Court. At your admission ceremony you make an oath or affirmation that you will conduct yourself honestly as an officer of the court. Your duty to the court is enlivened from this moment forward. Rule 3.1 of the NSW Professional Conduct and Practice Rules 2013 also states “A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty”.

What the duty constitutes was a mess of ad-hoc judge made law until 1998 when Justice Ipp wrote an article titled “Lawyers’ Duties to the Court” published in the Law Quarterly Review. In the article, Justice Ipp clearly identified four broad categories of a lawyer’s duty to the court:

1.       A general duty of disclosure owed to the court;

2.       A general duty not the abuse the court’s process;

3.       A general duty not to corrupt the administration of justice; and

4.       A general duty to conduct cases efficiently and expeditiously.

The most important component of the duty to the court for our purposes is that lawyers must not mislead the court.

Duty to your client

I am not going to go thoroughly through all the duties a lawyer owes their client. If you would like a thorough guide I recommend G E Dal Pont’s Lawyers’ Professional Responsibility (5^th ed, Thomson Reuters, 2013). The main duties are as follows:

1.       Duty to be competent;

2.       Duty of loyalty and trust;

3.       Duty of confidentiality;

4.       Duty to promote quality and client care (communication with client); and

5.       Duty to promote access to justice.

The duty of confidentiality requires you to keep conversations between yourself and your client confidential, even in court. If the judge suspects you know your client is guilty, and asks you directly, an appropriate answer that does not breach your duty of confidentiality towards your client would be “my client instructs me that he wishes to plead not guilty”. If the judge probes you further, you could say “it would be a breach of confidentiality to my client to further answer your question”. Criminal judges are used to dealing with these situations and should recognise the professional difficulty you are in reconciling your duty to the court and duty to your client.

Conflict between the two duties

As a lawyer you will have many duties. Sometimes these duties will be conflicting. However, it is well established that in the event of a conflict between your duty to the court and other duties, your duty to the court is to prevail (Gianarelli v Wraith (1988) 165 CLR 543, 555-6, 572 (‘Gianarelli’)). In Gianarelli (at 556), Mason CJ identified that a lawyer’s duty to the court and duty to the client are not just in competition, but can come into full collision, and may require a lawyer to “‘act in a variety of ways to the possible disadvantage of his client … the duty to the court is paramount even if the client gives instructions to the contrary.”

In the leading British case, Rondel v Worsley [1969] 1 AC 191 (at 227), Lord Reid described the overriding duty to the court as follows:

‘[A]s an officer of the court concerned in the administration of justice [a legal practitioner] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.’

What to tell your client when they tell you they are “guilty” but want to plead “not guilty”

For criminal defence lawyers, the duties do not have to collide if you carefully manage the matter and advise your client. The following steps must be taken:

1.       Inform your client that you have a duty to the court and that you cannot mislead the court;

2.       Explain that you also have a number of duties to them as your client, including a duty of confidentiality; and

3.       Explain the ways in which the two duties may conflict at court and the ramifications.

The ramifications you must notify your client of are numerous;

1.       The manner in which you can conduct your client’s case will be severely limited so that the court is not mislead, as you will not be able to set up a case inconsistent with the confession;

2.       You will not be able to suggest another person committed the offence;

3.       You will not be able to call evidence in support of an alibi for the accused if it is inconsistent with the confession made to you;

4.       You will not be able to allow your client to deny the truth of the prosecution case in any respect inconsistent with you client’s confession of guilty to you; and

5.       Your best case will probably be to assert that the evidence on the whole does not prove beyond reasonable doubt your client is guilty of the offence. Case theories that rely merely on asserting the evidence is not sufficient are generally weak case theories.

Conclusion

You can represent a client who wants to plead “not guilty” even where the client has told you they are “guilty”. Professional rules may in fact dictate that you must continue to represent the client, particularly if there is limited time before court for your client to find alternative representation. If you are a junior lawyer caught in this situation, while the steps discussed above may be useful, it is important that you discuss options with counsel or seek the assistance of a more senior lawyer to guide you. It is not just your client’s freedom on the line, but your professional future too. 

Legal action against Belle Gibson – is there a cause of action that would succeed?

Introduction

You would have heard of Belle Gibson, the charismatic cancer survivor behind The Whole Pantry app, Instagram account and book which were launched with immense success in 2014. The wellness empire was based on Belle Gibson’s alleged cancer story of abandoning chemotherapy and radiotherapy in 2009 and curing herself through natural healing processes. She further reported the cancer had returned in 2014 to her liver, brain, spleen and uterus. Belle Gibson was also revered for her supposed donations to charity including $300,000 she said had been donated to a number of charities from the income of sales. In early 2015 Belle Gibson’s story was exposed as a web of lies, and she admitted in an April 2015 interview that none of it was true. She had never had cancer. She only donated about $7,000 of the purported $300,000 to charity. There has been bitter public outrage ever since. While scathing criticisms have been written of Belle Gibson all over the internet, no one seems to have seriously contemplated if legal action would even be successful. In this article I consider the criminal and civil causes of action that may be available and why they are unlikely to provide the public with satisfaction. While Belle Gibson is a resident of Victoria, I will consider NSW law, as this is what I am familiar with.

CRIMINAL

Belle Gibson’s case is not the first

This is not the first case of an individual falsely claiming they have cancer to obtain financial benefit from the public. There have been many before, including:

1.       Angie Emma Walsh

As a 36 year old, Walsh convinced people in Victor Harbour and Adelaide she had thyroid cancer and acute myeloid leukaemia, raising $10,000 for herself. In 2013 the Magistrate’s Court convicted Walsh of fraud and sentenced her to six months imprisonment suspended on condition of a $500, 18 month good behaviour bond. In the process of sentencing, Magistrate McGrath considered the seriousness of the offence to be significant given Walsh completed high school and university, was a capable person, and exposed her daughter to potential life without her through her lies.

2.       Vanessa Barry

Vanessa Barry lied about having a brain tumour, and through creating fake medical documents and holding a fundraiser, raised over $20,000. She later spent this on clothes and shoes. In May 2014 Barry pleaded guilty to obtaining property by deception but was sentenced without conviction due to her prior good behaviour and mental health. She received a 9 month community corrections order under a mental health assessment.

3.       Elizabeth Edmunds

In April 2014 Elizabeth “Elle” Edmunds claimed to have ovarian cancer. By September 2014 she claimed it had spread to her lungs. Edmunds raised $2,500 through social media exposure until her partner revealed on Facebook that Edmunds was a fraud. The NSW police showed a willingness to take action and Edmunds was charged with fraud in April 2015. Edmunds is yet to appear before the Local Court.

Belle Gibson’s case is far more complex than those described above. She created a far more comprehensive fake public and literary identity and created a wellness App and recipe book that consumers inspired relied upon. While Angie Walsh and Vanessa Barry appear to have gotten a light non-custodial sentence, this may not be the case for fraud of Belle Gibson’s size.

What is the relevant criminal offence?

The two most relevant offences under the Crimes Act 1900 (NSW) are:

1.       Fraud simpliciter – maximum penalty 10 years 

“192E Fraud

(1) A person who, by any deception, dishonestly:

(a) obtains property belonging to another, or

(b) obtains any financial advantage or causes any financial disadvantage,

is guilty of the offence of fraud.”

2.       Intention to defraud by false or misleading statement – maximum penalty 5 years

“192G Intention to defraud by false or misleading statement

A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of:

(a) obtaining property belonging to another, or

(b) obtaining a financial advantage or causing a financial disadvantage,

is guilty of an offence.”

Pending appropriate evidence, Belle Gibson’s fraud appears to satisfy the elements of both s192E and s192G. The prosecution would attempt to prosecute under s192E given the larger maximum penalty, but in the process of plea bargaining may settle on s192G in exchange for a guilty plea. If the elements of the offence are all there, then where is the problem in convicting Belle Gibson?

Potential problems:

1.       Discretion of prosecutorial authorities

There is no indication Victoria Police, who has the jurisdiction to undertake the investigation into Belle Gibson as she is a resident of Victoria, is investigating the matter or instigating criminal proceedings. The public cannot control which matters the police decide to prosecute. Even if the police manage to gather admissible evidence for each element of the offence and there is a reasonable chance a jury will convict, there are a number of discretionary factors police prosecutors and the DPP can take into account in deciding whether or not to prosecute, including:

·         whether the alleged offence is a matter of public concern

·         prevalence of the alleged offence and need for personal and general deterrence

·         the likely length and expense of a trial

·         the likely outcome in the event of a finding of guilty, looking at the sentencing options available; and

·         whether proceedings would be unduly harsh or oppressive.

For example, if a consumer affairs body initiates proceedings which result in what is perceived to be sufficient punishment and deterrence, commencing criminal proceedings may be unduly harsh.

2.       Mental health

S192E and s192G offences are to be tried summarily unless the prosecution elects otherwise (Schedule 1 Criminal Procedure Act 1986 (NSW)).  Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) can therefore apply (see also s31). Section 32 provides a procedure for Magistrate’s dealing with a defendant suffering a mental illness. If it appears to the Magistrate the Defendant is suffering from a mental illness but is not a mentally ill person, the Magistrate can:

a.       Adjourn proceedings, grant the defendant bail or make any other appropriate orders; and

b.      Dismiss the charge and discharge the defendant into the care of a responsible person or require the defendant attend a person or place for assessment and/or treatment of their mental condition.

There have been claims that Belle Gibson’s mental health is unstable. In particular, Elle magazine had this to say about what happened when they published an article on Belle Gibson:

"When the December issue came out, we had a ton of positive feedback from both long-time and new supporters of Gibson. And then we got this anonymous email:

It has come to my attention that you have published a story about a girl I have known my whole life. Her name is Belle Gibson, creator of "The Whole Pantry" app + book. And a so called "Terminal cancer patient" Unfortunately, there are a few things you might need to know before you consider publishing more about this woman. She's a compulsive liar. In fact, she got so tangled in her own web of lies living in Brisbane, she moved to Melbourne to start a new life of lies – "the cancer lie" this time. For one – This girl isn't 26 years old.

She was born in 1991, class of 08, Wynnum High School in Queensland. My younger brother was in her form class. Secondly, she never had/nor does she have currently any form of cancer (Where's the proof?) I've known Belle since her childhood (and am close with her mother) and she has always had a problem with fabricating stories from nothing on a regular basis. It's one thing to act as if she can cure "her cancer" by eating organic (which simply isn't true) but to give false hope to people who are ACTUALLY fighting cancer is nothing short of evil. You MUST be aware of this before you publish stories about this woman. She is selling her fake sob story in order to profit from her app + book sales. She is a wolf in sheep's clothing & a master manipulator.

Sincerely, Sick of seeing her lies published :)”

If Belle Gibson claims the protection of s32, she could like Vanessa Barry, avoid a prison sentence if the Magistrate believes it would be more appropriate to deal with her fraud through the s32 process.

CIVIL

It was reported in March 2015 that Consumer Affairs Victoria is investigating the nature of the fundraising appeals, including details of beneficiaries and net proceeds given.  There is no indication a Consumer Affairs body is investigating the fraud and misleading conduct behind Belle Gibson’s fraud. An investigation does not mean a prosecution would occur. If a consumer affairs body did decide to prosecute, which cause of action could it rely upon?

Misleading and deceptive conduct

Section 18 of Schedule 2 to the Competition and Consumer Act provides:

“18   Misleading or deceptive conduct

(1)  A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2)  Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).”

Belle Gibson’s business in selling the App and recipe book would come under the broad concept of “trade and commerce” described in Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 (at 167) and Larmer v Power Machinery Pty Ltd (1977) 29 FLR 490 at 493. The “conduct” which was misleading and deceptive would be numerous announcements across her App, in her cook book and through media outlets that she was a cancer survivor who had healed herself through natural methods including her diet. Her fake identity was so comprehensive and calculated it would pass the threshold of deception required. A breach of s18 can result in a variety of remedies including injunctions, damages, and compensatory orders.

Who can bring action under the Competition and Consumer Act?

No consumer affairs bodies have brought civil action against Belle Gibson to date. The ACCC usually only have the resources to prosecute cases of national importance and are unlikely to prosecute Belle Gibson. Consumer Affairs Victoria has instigated an investigation, but this is unlikely to proceed to civil prosecution. Individuals can take action under the Competition and Consumer Act and class action is also possible. Section 236(2) creates a 6 year limitation period. However, the real issue is establishing damages. A consumer may have spent a few dollars on the App and the recipe book, but on an individual level there is a real feeling of betrayal and outrage at being deceived rather than any real loss.

Ancillary liability

The Competition and Consumer Act 2010 (Cth) provides for the possibility of suing third parties who were “knowingly concerned” in the breach (s75B). However, the relevant third parties claim to not have been in the know and took action as soon as they became aware of the fraud. The Australian publishers of the cook book Lantern Books (Penguin) never asked for evidence about Bell Gibson’s medical condition. They claim they published the recipe book “in good faith” and withdrew it from bookstores and publishing as soon as the story came out and Belle Gibson failed to respond to their requests satisfactorily. Similarly, Apple, who was responsible for publishing the App, removed the App from Australian and US App stores and soon after, removed the App from the Apple Watch. It is unlikely the publishers could be held ancillary liable in this situation.

Conclusion

While the elements for a criminal conviction for fraud and a civil conviction of misleading and deceptive conduct exist, the legal outcome of such cases is likely to be unsatisfactory for the outraged public. If criminal action is taken by a prosecutorial body, it is unlikely Belle Gibson will go to prison as she may come under s32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). While Belle Gibson may be ordered to pay damages if civil action is taken by a consumer affairs body, it is very unlikely a consumer affairs body will take the case on. Individuals taking civil action under the Competition and Consumer Act 2010 (Cth) will face the difficult hurdle of establishing their loss. In the end though, it may not even matter. Belle Gibson created her alternative reality to feed her desire for public sympathy and attention. The emergence of the truth is perhaps a greater punishment for Gibson than anything the criminal or civil legal system can offer. There is probably nothing worse for a person who is addicted to public approval to be the subject of public hate.