This sucks so much, but I'm very tired. It's part one of Monday. Part two of monday is now in production
Day one, Monday 4th July:
Rob was late. Important things always start out like this. "Be at my chambers at 9:00," he (John SC) said. He's in 13th Selbourne Chambers. I got to the city at 9:15. Couldn't remember where the chambers were, as I was in a rush and all flustered, but I knew once I'd walk up to Hyde Park. I was on Elizabeth street, and went left towards the chambers. I get there, the clerk says he's gone to court in the Madison Building at corner of Goulburn and Elizabeth street. Walk all the way down Liz street past hyde park.
I get up to the floor and find John talking to the opposing Barrister. In the Madison building, there are 4 courtrooms in the corners of each level, with six small rooms between them. The courtrooms have the bench, with the one judge (it's a district court) a clerk lady, and a person in charge of the recordings, the bar table, and seats for about 30 people. The judges enter from the front of the court, with having their own hallways and lifts.
Anyway, I find John talking to the opposing Barrister. They are very serious, yet are comfortably talking. From the outset, this is my observation of the Bar: Although barristers argue and do get passionate against each other, they maintain an excellent working relationship. "Servants of all yet of none" (their motto) is true to the fact that they work in a community, yet are constantly working for different clients, appear infront of different judges, work with different solicitors, and (most importantly) work
with opposing Barristers.
This is an interesting point- x barrister will know y's argument, his evidence and his objections before entering the court room. I know I'm jumping around, but I'll type as things come to mind. If x barrister is a silk, ie he has become a Senior Counsel, he refers to barrister y (a non-silk) as "my friend". Conversely, y refers to x as "my learned friend". I assume if they're both silks, they both say "my friend" or "learned friend". This shows the strength of the relationship between barristers- not only do they have a legal obligation to forward arguments before the trial, but it's a common courtesy. By not preparing one's friend, you put him in a bad position.
I suppose this is why our court system is different (read: neither better nor worse) to the Americans. A large theatric is part of the American system, and although it encourages sharp mindset to object at an advantageous time, Australia seems to promote "getting to the truth". I'd heard that Barristers were not allowed to lie in court, but I thought it was just "a rule".
After seeing the mess (about 2 minutes of dialogue) between the Judge, John, and the other barrister, when a barrister accidentally lies, I'd hate to see what happens if a Barrister gets caught out in a lie. John said that this rarely happens as it's basically an automatic destroyal of one's career.
Continuing with the story- although John and other barrister were serious and formal, they were practical- "mate" seeing to be the out-of-court equivalent to "my friend". This contrasts with the in-court appearance of formalities and the Barristers having to be terribly specific, precise, and not at all ambiguous. Not to mention having to constantly remind the world that "His Honour" decides the matter.
Like I said, I arrived latish, but thankfully the District Courts start at 10. I met with John, and he explained the case:
- The client had applied and been accepted for income protection insurance,
- On the form, he lied about not having sleep apnoea, about his weight/height, and about the nature of his work. Probably to reduce the waiting period, the chance of rejection, and the premium. By lied about not having sleep apnoea, I mean he didn’t include it in his application for insurance when he knew about it,
- He injured himself, badly, at home. He couldn’t work, and claimed insurance. If you’re wondering, I met the person in question, and he genuinely injured himself,
- After inspecting the claim, the company came to the correct conclusion that the client (the plaintiff) should have disclosed his knowledge of sleep apnoea,
- After this point, the claim was rejected on the grounds of disclosure of his sleep apnoea,
- A few months later, the company also wrote a letter saying that not only because of sleep apnoea, but also weight, height, and nature of work meant that he had no hope of claiming,
- Insurance law (haha, this is great, I know the number, but not the name or any other particulars) Section 29 says that although it’s bad not to disclose info, an avoidance of the contract (a rejection made by the company) can only be made if the non-disclosed info would not have affected the initial application process, to which there are a number of criteria.
- The matter was made worse by the company in question to be a jerk to the plaintiff. Yes, he was in the wrong, yes he knows it. Fortunately for John (representing the plaintiff), the company’s half-assed job of evidence and handling of the notice of avoidance meant that there was a case:
- Sleep apnoea, measured on a table of how many times a patient stops breathing in a 9-hour night (<20 all the way to 2000ish), on a scale of less than 20, has no consequence on an application of insurance. This is because 20 times or less in one night has been proven to have little effect on risk. The client was under this number after having done numerous tests, yet he still remains at fault due to not disclosing it. Fortunately, when it comes to cancelling the claim, all the company can do is find something more important, although they can easily not issue him with another policy. The reasons for cancelling the claim must be given once in writing; all reasons found thereafter are invalid. The opposing team ignored this by trying to bring into the height/weight/nature of work matters.
