CHRIS THOMSON
Governor Designate Malcolm McCusker breached an obligation to two Southwest farmers for whom he provided legal advice, the chief justice of WA concluded today.
A written Supreme Court judgement by Chief Justice Wayne Martin concludes Mr McCusker breached his obligation to provide advice in reasonable time to farmers James and Libby Smith of Borden.
Mr McCusker was recently appointed the next governor of Western Australia. He assumes the role of the Queen’s representative on July 1.
Before Mr Martin, the Smiths alleged Mr McCusker’s negligence and delay in providing advice lost them the opportunity to pursue a claim against the Rural and Industries Bank of WA.
In August 1986, the Smiths’ solicitor had engaged Mr McCusker to advise on their prospects of success against the bank. In March 1989, Mr McCusker advised that the Smiths had a poor prospect of success.
In 1989, the Smiths’ legal team engaged Daryl Williams QC – later to become a Howard Government communications minister - who in 1990 provided advice of a more positive nature.
Today, Mr Martin concluded Mr McCusker’s breach of duty to advise in a timely fashion resulted in his opinion being delivered 15 months later than it would have been.
Mr Martin also concluded Mr McCusker had not been negligent and did not cause the Smiths to suffer any loss or damage.
Mr Martin dismissed the Smiths’ damages claim against the Governor Designate, noting their claim against the bank had always been “hopeless and doomed to fail”.
The case is not the only recent example of Mr McCusker having to defend himself before his eminent legal peers.
In ongoing action before State Administrative Tribunal President John Chaney, stood-down government whistleblower Neil Winzer claims Mr McCusker misled the Legal Profession Complaints Committee.
The allegation concerns the period between 2004 and 2008 when Mr McCusker was Parliamentary Inspector of the Corruption and Crime Commission.
It relates to the investigation of Mr Winzer’s 12-year-long, and unproven, claims of corruption against a senior WA transport department officer.
The complaints committee had earlier dismissed the allegation but did not make a finding. This opened a legal window for Mr Winzer to apply for a review in the tribunal.
