Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of getting the wife’s solicitor out of the case. Those allegations were in fact made in a private prosecution by the husband of the wife’s solicitor for maintenance. Reading the decision, one might think that striking off the rolls was a relatively harsh penalty by today’s standards for the conduct recorded, especially since his client succeeded at committal in having the wife’s solicitor presented for trial. And also if one believes Mr Clyne’s autobiography where he asserted:
‘Particulars given by the New South Wales Bar Association made it quite clear that it was not part of the charge to say that my advice to prosecute was wrong, or improper. Indeed, as I have mentioned before, the advice to prosecute Mann was given in writing, by the eminent and respected Sydney QC, Mr Newton, who later became (and still is) a judge of the New South Wales District Court; and no one has ever criticized Mr Newton for his advice.’
But Mr Clyne had done it before and been sternly warned (see CLR 202) and was unrepentant to the moment he was struck off. Further, he was absolutely one out of the box (he will be the subject of a further blog post) and was no doubt regarded as an excrescence on the legal system to be excised at almost any cost. He went on to irritate the authorities as a professional tax evader and unashamed advocate of tax evasion, writing many books on the subject and others (e.g. Adventures in Tax Avoidance, How Not to Pay Any Taxes, Guilty But Insane) while living a decadent lifestyle which hopped, first class, between hotels in Sydney and his native Vienna. Like George Herscu, one of the villains in White Industries v Flower & Hart, Clyne spent time in jail, and only avoided spending more time by fleeing America without a passport while on appeal bail. He seems to have been intelligent and to have had enough charm to be married to a Welsh entomologist who also wrote many rather different books (e.g. Silkworms, All About Ants, and Plants of Prey). But his autobiography (Outlaw Among Lawyers; the Peter Clyne Story, Cassell Australia, 1981) reveals a thoroughly dishonest if colourful character with very little if any regard for the law.Mr Jacombe and a woman were engaged in ‘an orgy of litigation’ involving more than 20 proceedings arising out of their matrimonial or quasi matrimonial affairs.
Most were commenced by the husband, but the wife petitioned for divorce on the basis of adultery, and for alimony pending the determination of that petition. The wife also sought an accounting in equity for monies allegedly owed to her, and a property law suit for the division and sale of the matrimonial home.
They had first separated about two years before the final separation, at which time the wife had commenced proceedings in equity for an account of her share in jointly owned property. The same year, they reunited at which time the wife signed a deed, witnessed by an independent solicitor who ‘may be presumed to have explained to her the effect of the deed’, acknowledging that she had no beneficial interest in any property held in either party’s name except a half interest in the matrimonial house, Lynton Manor. Three months later, she also made a statutory declaration which was ‘on its face a very curious document’. (197)
Mr Jacombe defended the divorce case on the basis that there was no marriage to annul, since the wife was married at the time she purported to marry him. (194) (In his autobiography Mr Clyne said:
‘Jacombe v Jacombe was not merely a lawsuit. It was a tornado of litigation; and I was one of the things that the tornado swept away. Murray Stephen Jacombe was a very successful financier who married a ballet dancer in Estonia in the late forties and brought his wife and daughter out to Australia in the early fifties.
…
Life has its ironies! The Privy Council finally upheld Mr Jacombe’s arguments and ruled that his marriage was null and void; and then he got lonely, married the lady again, and as far as I know they are still happily married, laughing about the bad old days.’)
Mr Jacombe changed his solicitors, who briefed new counsel (Mr Clyne), mid-orgy. Mr Clyne decided that the best thing to do would be to launch a private prosecution of the wife’s solicitor for the indictable criminal offence of maintenance. The prosecutions were:
‘admittedly devised as a means of intimidating that solicitor into ceasing to act for’ the wife (p. 188).
‘In opening the proceedings before the magistrate the appellant deliberately used the occasion to make a savage public attack on the professional character of that solicitor. He made that attack in extravagant terms, alleging fraud, perjury and blackmail. He knew that he had no evidence to substantiate such allegations. At the end of his opening, he invited the man whom he was prosecuting for a crime to defend himself before any evidence had been given against him, and intimated that, if he were to cease to act for his client, the criminal proceedings would have achieved their object and could be discontinued.’ (p. 188)
‘What was said later in court by the appellant suggests that it was hoped that Mr Mann would, rather than face trial on a criminal charge, agree to cease to act as Mrs Jacombe’s solicitor. But it is not easy to believe that this hope was very seriously entertained. No self-respecting solicitor would react in such a way to such a threat, and, in the light of what happened, it is probably true to say that the general idea was to make a vigorous public attack on the professional character of Mr Mann and hope for the best. At any rate, it is quite clear that the prosecutions were undertaken with no other object in view than the elimination of Mr Mann from the proceedings between Mr and Mrs Jacombe, and the whole enterprise seems to have been irresponsible and mischievous.’ (p. 191)
‘What was said later’ seems to be a reference to this:
‘I say, if Mrs Jacombe or Mr Mann undertakes to allow her consult [sic.] an independent solicitor this matter could be settled within 48 hours. We have taken the course which may seem desperate and unusual because we can see no other way of avoiding litigation which is going to go on and on in a number of courts simply because a solicitor wants to make money’.
Five allegations were in substance made by Mr Clyne. (193) First, that he was in financial difficulties because he undertook to pay large sums as a result of his partner’s defalcations, providing a motive for the commission of the offence of maintenance. The Court characterised this as a statement that the solicitor was in such financial difficulties as would induce him to commit a crime. (193)
The only evidence he had was that of a policeman who said that the wife’s solicitor had told him more than eighteen months previously that if the defalcations of about £13,000 were at any stage shown to be a liability of the partnership, then the solicitor would have no alternative but to meet them. No inference that the solicitor was, eighteen months later, in financial difficulties, could be drawn, the Court said, no doubt because there was no evidence that the defalcations had been found to be liabilities of the partnership and no evidence that the solicitor had had to meet them and no evidence that doing so put the solicitor in financial difficulties. The fact that the husband had subpoenaed the solicitor’s financial records and that the solicitor had not produced them in response did not assist the barrister. Most obviously, one might think, an unresponded-to subpoena yields no evidence, but the Court also said that the only person through whom any documents which were ultimately produced in response to the subpoena could be adduced was the solicitor who was not a compellable witness. (193)
The second allegation was that the application for alimony was procured upon an affidavit prepared by the solicitor which he knew to be false when sworn by the wife, so that the solicitor had been an accessory to perjury. She said ‘I have no income, no money in the bank and no means whatsoever.’ The only evidence to establish the falsity of those propositions was that she had £11 in the bank, and had received the payments from Mr Mann which were the subject of the maintenance allegation. There was no evidence that the wife knew them to be materially false, and no evidence that the affidavit was in fact prepared by the solicitor as opposed to a clerk in his office. (194)
The third allegation was that the solicitor was deliberately protracting litigation to serve his own ends because he refused to give particulars in the divorce case. The husband had sought particulars of whether it was alleged that the person he said was still married to the wife when she purported to marry the husband was dead or whether it was alleged that he was divorced. The husband did not take out a summons to compel the production of these ‘particulars’. But the request was not for particulars at all. It was a request for evidence which did not need to be acceded to. The allegation was that the wife and the husband were married. It was the husband’s case that they were not, and it was for him to prove it. The allegation that the non-response ‘made costs for’ the solicitor to the disadvantage of the wife was logically unsound because, as the Court said ‘Why should [the husband] not be left to destroy her prima facie case, if he could, by cross-examination or otherwise?’ But there also seems to have been no evidence as to the wife’s instructions to Mr Mann in relation to this question and the extent to which they were fully informed.
The fourth allegation was that the solicitor had refused or neglected to negotiate with the husband’s camp a settlement of the proceedings so as to ‘extract as much money as possible out of [the wife]’. The primary basis for this allegation was the non-response to a letter which offered not to resist the proceeding so long as the wife acquiesced to the orders relating to alimony and custody which he wanted. In default, he said, he would resist the suit by reference to evidence which might result in the suit failing and would be most material to the question of alimony and custody and there would be ‘scandal and publicity’. (195) This allegation too was logically flawed, according to the Court, since ‘any responsible solicitor, whose client brought him that letter in the circumstances of this case, would certainly advise his client to ignore it, and would himself either not answer it at all or, if he did answer it, would say little more than that his client was not be to intimidated’. But Mr Clyne had no evidence that the letter had even been shown by the wife to the solicitor, let alone any evidence of what was said between them about it. (196)
The fifth allegation was that the solicitor was conducting for the wife hopeless litigation without expectation of receiving any payment directly from her. The Court dealt with each proceeding separately:
- It said that the petition for divorce and alimony in the meantime had not been demonstrated to be obviously hopeless, so the allegation was simply logically wrong. (196)
- The suit for the division and sale of the home was not obviously hopeless for the reasons suggested either, so the allegation was once again simply logically wrong. But again, Dr Clyne had no evidence as to the instructions the wife had given her solicitor, and no evidence at all that the solicitor even knew of the husband’s allegations which Mr Clyne asserted made the wife’s case hopeless. (196 – 197).
- The equitable suit for an accounting was not demonstrated to be hopeless either despite the accord and satisfaction defence, the acknowledgements in the deed, and the statutory declaration, which provided the husband with a prima facie defence. As the Court put it, ‘but it is a far cry from saying this [that there was a prima facie defence] to saying that a solicitor, who acts for a wife in a suit which cannot succeed unless a deed between her and her husband is set aside, is acting purely in his own interests or is in any way guilty of misconduct.’ It was clear that the wife was challenging the deed and once again, Mr Clyne knew nothing of the instructions given by the wife to her solicitor.
Marvellously, in the circumstances, Mr Clyne said of the wife’s solicitor that her equity suit ‘was brought utterly without any foundation or responsibility’. (198)
The main allegation of maintenance to which these five allegations were an adjunct seems to have been based principally on evidence that the solicitor had made out some cheques in favour of the wife. The Court said:
‘It is impossible to say that the making of a payment by a solicitor to a client for whom he is conducting litigation is proof that he is “unlawfully maintaining” that litigation. He may be paying money which he owes to the client. He may be making a loan to the client: there is no reason why he should not do so.’ (192)
Stating the law, the Court said at 200 – 201:
‘a member of the Bar enjoys great privileges both de jure and de facto. In particular his privilege in relation to defamatory statements made by him in court is not qualified but absolute. It is perhaps worth while to quote yet again the oft-quoted words of Lopes L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431 . His Lordship said :
“This ‘absolute privilege’ has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that Courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them.” (1892) 1 QB, at p 451.
The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them. It cannot, of course, be enough that he thinks that he may be able to establish his statements out of the mouth of a witness for the other side. This was explained to the appellant, who should have known it before, by Manning J. in certain proceedings in April 1957, to which we shall refer in a moment.’
The Court made no reference to any formal conduct rule which had been breached. It seems likely from pp 199 – 200 that the conduct rules relating to a proper foundation were at the time of Mr Clyne’s address unwritten.
