Ongoing struggle between Clayton Utz and Christopher Dale … Gathering of ghosts … McCabe case, Ebner case, the Korean inheritance saga … Sleuths and leaks … Did Allan Myers give Dale advice? … Can he act for Clayton Utz against Dale?
Myers: no memory of advising Dale on the Clayton Utz fallout
HUGELY wealthy and busy Yarraside barrister Allan Myers can't remember if he gave advice to excommunicated Clutz partner Christopher Dale.
Dale is suing Clayton Utz for wrongful termination of his partnership.
The mighty law shop has retained Myers for the stoush, but Dale says he sought and obtained advice from Myers in August 2004 and late 2005 over aspects of his relationship with the firm, where he had been a partner for 19 years.
Dale is seeking orders to stop Clutz continuing to retain Myers.
For his part, the grand silk says he has no recollection of any discussion with Dale about the firm's treatment of him. In fact, he believes he was not retained to provide advice at all.
Dale secured orders from Justice Elizabeth Hollingworth on November 29 that he could cross-examine Myers as part of his injunction application.
Clutz, on a limited basis, could also cross-examine Dale.
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Dale: adventures with Clutz
CLUTZ expelled Dale in October 2005 after a number of disconcerting issues had ruffled the surface of the otherwise serene and glossy firm.
In 1995 Dale acted for Chuena Schmidt, who had complained to Victoria police about her brother's access to funds she claimed were held jointly from a large inheritance from her parents in Korea.
Dale engaged the well-known sleuth Kerry Milte to investigate Mrs Schmidt's brother and to sniff out what the Victorian coppers were up to.
Milte is a former bankrupt with a conviction for inciting a police officer to extract information from a police database.
In any event, Mrs Schmidt doled out heaps of money to Milte for his "investigations".
Clayton Utz claimed that Milte's engagement by Dale was outside the firm's policy and it repaid the client $110,000.
Clutz said it was under no legal obligation to pay the client, but was "sympathetic to her situation".
A police file sent to the OPP detailed an investigation into the "misappropriation of $120,000 by Kerry Milte and Chris Dale".
There was also another issue called "the Ebner matters", in which the firm claims Dale incurred counsels' fees and disbursements outside it's pro bono policy.
Chief executive partner David Fagan demanded that Dale reimburse the firm for this expenditure.
The firm also alleged that Dale lied when he told other partners that counsel in the Ebner matters were prepared to wait for payment of their fees.
In 2002 Dale had conducted an internal Clutz investigation into the way partners Richard Travers and Glenn Eggelton had run the defence for British American Tobacco in the notorious McCabe case.
This resulted in Travers leaving the firm with a negotiated settlement in July 2002. Dale kept on about Eggleton, saying at board meetings that he too should have resigned.
However, other partners queried whether it was necessary to also dispense with Eggleton given that the High Court had refused leave to appeal VicAppeals' unconvincing reasons overturning Eames J's findings in McCabe.
As the clouds darkened over Dale's future with the firm he removed copies of his secret McCabe report for safe keeping.
In October 2006, a year after Dale's termination, the disturbing internal findings about the misconduct of the Clutz partners in the McCabe litigation appeared in The Sunday Age, under the headline: Justice denied: how lawyers set out to defeat a dying woman.
In January the following year, Dale outed himself as the source for The Sunday Age's splash.
Dale maintains the real reason for his sacking from the partnership was because he lobbied for the removal of Eggleton.
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NOW Dale is suing the old shop, but first he wants to get Myers off the case.
Clayton Utz is keen to get its former partner, and ex-president of the Law Institute, in the box to cross-examine him about the nature and extent of his contact with Allan Myers and about the leaking of the McCabe inquiry to the reptiles of the press.
Dale maintains that he consulted Myers principally about the Ebner matters. He contacted the silk's secretary and made an appointment to see him at 11am on August 23, 2004.
He has a "very good memory" of meeting Myers in his chambers for about an hour.
He said that Myers told him that it looked as though he was "being set-up" and gave advice whether he would be lawfully be required to reimburse the firm for counsel's fees.
Dale added in his affidavit that Myers did not ask him to appoint an instructing solicitor and that fees were never discussed.
Acting on Myers advice in September 2004 he undertook to pay the firm for the Ebner fees and disbursements.
Myers in his affidavit of March 2012 says he has "no recollection or [sic] any meeting with Mr Dale on or about August 23, 2004".
He can only recall a conversation where Dale volunteered information that his wife, a musician, was recording some musical works in Ireland.
Myers said it is his "universal practice" to insist on a brief, at least consisting of a back sheet.
"Sometimes I mark back sheets 'fee declined', but my practice, without exception, is not to give legal advice without establishing a professional relationship, and provision of a brief is an essential component of any such relationship ...
I believe with a high-level of confidence that I did not accept a brief to advise Mr Dale in respect of which I declined a fee."
Myers also has no recollection or record of any conversation with Dale in late 2005 regarding his "dismissal" from Clayton Utz.
Justice Hollingworth granted leave for Dale to cross-examine Myers "without limitation", saying:
"Just because My Myers has no positive recollection of any relevant contact, it does not follow that there is no relevant factual dispute which requires exploring by cross-examination."
She also granted Clutz leave to cross-examine Dale, but on a restricted basis.
There are to be no questions about: Dale's account of his interaction with David Fagan or other partners which led him to contact Myers; the substance of any instructions which Dale says he gave to Myers or any legal advice provided; past disciplinary matters if the only purpose is to establish "bad character"; and two matters that Clayton Utz says affects Dale's credit - falsely recording in the firm's trust account that certain funds had been provided to the firm by Mr Milte, when in fact they had been provided by Dale himself, and an allegation that he lied over the Ebner matters.
An earlier alleged lie, in which Dale had claimed not to have leaked the internal McCabe inquiry, will be taken a step at a time, given that privilege against self-incrimination may be claimed.
Still, that leaves room for plenty of other excitements when the injunction hearing comes on.