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2015, not such a good year (part 4: domestic politics and refugees)

February 5th, 2016 · No Comments

Domestic politics

Speaking of Islamic head coverings, that most inappropriate speaker Bronwyn Bishop (see fell off the perch. Three weeks into Choppergate, Ms Bishop acknowledged that after commandeering a chopper at your and my expense to a Liberal fundraiser in Geelong of all places was ‘completely ridiculous’, leading to close analysis of her previous expense claims. (Now she’s back in the game, hoping to contest the next election in order to ‘fight terrorism’, crowing about her ‘exoneration’ in the Choppergate affair, apparently evidenced by the Federal Police’s decision not to press charges.  How you can be exonerated of behaviour you describe yourself as completely ridiculous is a puzzle.) Clive Palmer, whom Donald Trump made look Natasha Stott-Despojaesque by comparison last year, was funny in response, all the funnier for jumping the gun. Ms Bishop’s boss, Peta Credlin, fell off her perch too, and Tony Abbott with them after Ms B. Bishop and other Liberal MPs voted against Mr Abbott. He was succeeded as PM by Malcolm and Lucy Turnbull, but not before: [Read more →]

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2015, not such a great year (part 3: abuse, terrorism, misery and disaster, power)

February 4th, 2016 · No Comments


Speaking of the Catholics as I was at the end of the last post, there were some fairly spectacular sick notes.  Cardinal Pell was too sick to attend the Royal Commission into Institutional Responses to Child Sexual Abuse in person. Alan Myers QC could not persuade the Commission to hear his evidence by video link. ‘No problem’, the Commissioner said, ‘Come back in February.’

And lead counsel for the appellants in the High Court appeal which might wind back advocates’ immunity called in sick the afternoon before the hearing, leading to its last minute adjournment.  It is now fixed for 8 March 2016.

The sexual abuse royal commission quietly did great work.

Dyson Heydon released his findings in relation to Union Corruption, and demonstrated in his reasons for not recusing himself for ostensible bias that an ability to use email is not a necessary attribute to rise to the ranks of High Court judge. Bill Shorten escaped relatively unscathed. Kathy Jackson and once-influential industrial tribunal member Michael Lawler shared their thoughts in an extraordinary 4 Corners, the appropriateness airing which, given the protagonists’ apparent state of health, I was dubious about.

Violence against women in Australia got some serious attention. Sarah Ferguson’s ‘Hitting Home’, a two part ABC documentary, was like nothing I had ever seen before. The same is true of some of the excellent policing it records. Rosie Batty was Australian of the Year, and the Herald Sun were right behind her. The government appointed a woman Minister for Women. There was a report into endemic sexual harassment in the Victorian police force. [Read more →]

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2015, not such a great year (part 2: death, crime, marriage, war)

February 3rd, 2016 · No Comments

Death, crime and marriage

Richie Benaud died. 501 Sydneysiders dressed up as Richie a few weeks ago in a weird tribute at the SCG test. Lee Kwan Yew and Malcolm Fraser died too. So did Bart Cummings, Harry Butler, and Alan Bond. So did a singer I liked a lot, Victor Démé from the country known as Upper Volta when I was a stamp collector, Burkina Faso, a country of which I have fond memories: lovely people. He penned Djôn’maya, which is a bit Nick Drake, a bit 1960s Angola. He died of malaria, the country’s foremost killer even as great advances are made against the scourge, aged 54. [Read more →]

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2015, not such a good year (part 1: aviation and environment)

February 1st, 2016 · No Comments

Happy new year, friends! Despite the discombobulation of having to find new chambers last year, I came away with a better feeling than I did about 2014 which (my thoughts on 2014 were here).  I took a sabbatical which probably had a lot to do with it (just back today, really).  That was pretty sweet. And you know, we solved global warming, those Parisians really showed Al Qaeda and ISIS how to stick it up themselves, with their ‘Je Suis Charlie’s and rambunctious singing of the Marseillaise, more than one government seemed to right itself, and David Cameron really isn’t that bad compared to some other conservative leaders getting about.

And my goodness, what a year for apologies! Wasn’t it delicious to see the appalling Speaker fall off her perch after so tenacious and prolonged a defence of her chopper charter to — of all places — the home town of the mohawked Mayor? Speaking of Darren Lyons, he turned up at Oktoberfest in a t-shirt featuring a full frontal naked Madonna hitch-hiking, with the words ‘Gas, grass or ass, nobody rides for free.’ He defended the appropriateness of wearing the artistic nude but apologised for the ‘sexist scrawl’, explaining that he hadn’t read the t-shirt before wearing it out, no doubt focusing on certain of its other features.  Then Tony Blair apologised ‘for the fact that the intelligence we received was wrong’. Hilarious.

It was still a pretty bad year though, as years go, as we will see in the next couple of days’ posts.  Today, we look at the planes forced from the skies and the state of the environment. [Read more →]

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When can lawyers contract out of taxation (part 3)

December 10th, 2015 · No Comments

This is part 3 of a post about the circumstances in which lawyers can avoid having their fees taxed.  Parts 1 and 2 are here and here.  In GLS v Goodman Group Pty Ltd [2015] VSC 627, Macaulay J held that an accord and satisfaction which was found to have been made in relation to fees previously rendered for work already done was not a ‘costs agreement’ in the sense of that expression in the now-repealed but still operative Legal Profession Act 2004, so that the prohibitions on contracting out of taxation in costs agreements, and the writing requirements for costs agreements were not applicable.  His Honour distinguished Amirbeaggi and Jaha, discussed in the two previous posts, explaining that he was following Beba.

Justice Macaulay ruled: [

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When can lawyers contract out of taxation? (part 2)

December 9th, 2015 · No Comments

This is part 2 of a post about in what circumstances lawyers can avoid having their fees scrutinised by the Supreme Court by the process traditionally known as ‘taxation’, but more recently also described in statutes as ‘costs review’ and ‘costs assessment’.  Part 1 is here. First, a disclosure: I argued Beba at first instance, for the lawyers, and advised in the appeals.

In Beba Enterprises Limited v Gadens Lawyers [2013] VSCA 136, a borrower promised the lender to pay the lender’s legal costs if they defaulted.  Of course, they did default, and the lender demanded a sum which included an allowance for the lender’s legal fees occasioned by the default. The borrower and lender compromised their dispute, including in relation to the legal fees payable.  Nevertheless, the borrower sought taxation of the lender’s legal fees by issuing a summons for taxation addressed to Gadens Lawyers, the lender’s solicitors. [Read more →]

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When can lawyers contract out of taxation? (part 1)

December 6th, 2015 · No Comments

Often enough, lawyers would love to avoid having their costs taxed.  Under the repealed but still operative Legal Profession Act 2004, lawyers could contract out in advance of the obligation to have their fees reviewed by taxation with ‘sophisticated clients’, but I do not recall ever having seen anyone attempt to do so.

When lawyers have not complied perfectly, vis-a-vis unsophisticated clients, with the costs disclosure regime under the repealed but still relevant Legal Profession Act 2004, they could not recover their fees unless there had been a taxation: s. 3.4.17.

It was clear that unsophisticated clients could not validly agree to waive in advance of the fees being incurred their right to tax their lawyers’ charges. But what about if the solicitors entered into a compromise of a dispute about their already rendered fees with their client?

How did the law of accord and satisfaction apply? (Accord and satisfaction is the litigation estoppel equivalent to res judicata when a dispute is compromised or ‘settled’ rather than adjudicated upon.)

Can lawyers get certainty and avoid further disputation (including taxation) in return for a discount on their fees?  Can they get around the s. 3.4.17 prohibition on recovering fees in cases of disclosure defaults unless they have been taxed?  If a taxation is commenced and then compromised, I would think there was no doubt that the fees have been ‘taxed’ for the purposes of this rule, especially if the compromise were embodied in orders finalising the taxation.  But what if the compromise occurs without any summons for taxation having been issued? Need the compromise comply with the formal requirements for costs agreements on the basis that they are agreements about the payment of legal costs which have been which have been charged for the provision of legal services?  Does the accord have to state expressly that the client waives the right to taxation?

It seemed until recently, that lawyers could not preclude taxation by compromising a dispute with a client or associated third party payer about fees, because such agreements would amount to a ‘costs agreement’ under the Legal Profession Act 2004.  Costs agreements were defined, after all, to mean ‘an agreement about the payment of legal costs’: s. 3.4.2, where ‘legal costs’ were defined by s. 1.2.1 to mean, amongst other things, ‘amounts that a person has been … charged by … a law practice for the provision of legal services…’).  And the Act prohibited unsophisticated clients from contracting out of their right to taxation.  Attempts to do so were void: ss. 3.4.26(5), 3.4.31.

The cases in this blog post (Amirbeaggi (NSWSC, 2008) and Jaha (SCV, 2012) explain why unsophisticated clients were apparently equally unable validly to waive their right to taxation after the fees had been incurred as they were unable to do so in advance, by virtue of the breadth of the definition of ‘costs agreement’.

Subsequent blog posts will consider what the Court of Appeal has had to say in a case indirectly on point, and explain the true state of the law in Victoria, as declared by the Supreme Court. It seems now that Victorian lawyers in dispute with their clients can buy their way out of taxation by giving clients a bit of a discount, and that this can occur without any writing or other formalities associated with ‘costs agreements’, and without any express reference to the future unavailability of taxation.  The client need not even be aware that they are giving up their right to taxation.  And that is so because agreements about how much a lawyer will accept in full and final satisfaction of their claim for fees already rendered for work already done are not ‘costs agreements’ governed by the Act after all. [Read more →]

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The extended duration of the un-renewed practising certificate

October 8th, 2015 · No Comments

Under the Legal Profession Act 2004, if a lawyer applied for renewal of their practising certificate prior to the expiry of the old one, but a decision was not made before the old one runs out, the certificate is extended until either it is renewed or a decision to refuse renewal is finally determined by the exhaustion of all rights of review of that decision.  No one has ever really known what that meant.  There is a statutory review procedure in VCAT and then there are appeals all the way to the High Court.  Are the appeals from the review ‘a right of review of the decision’?  The Supreme Court has now determined that the certificate endures (if not earlier cancelled or suspended by the stipes) until the end of the High Court appeal.

The question arose in Batrouney v Forster (No 2) [2015] VSC 541, handed down by Justice Robson yesterday (see paras [167] – [193]).  It represents a further embarrassment for the Legal Services Board appointed receivers of David Forster’s practice, Hollows Lawyers, with a savage series of costs orders against the receivers in Mr Forster’s favour.  That followed findings that the receivers’ proceedings were in part misconceived, and that they breached more than one provision of the Civil Procedure Act 2010. The question was at what point did Mr Forster cease to hold a practising certificate and so cease to be entitled to claim costs of acting for himself under the Cachia v Hanes (1994) 179 CLR 403 at 411–413 exception to the rule that self-represented litigants are not entitled to costs for work done by themselves.

The question is a matter of significance to practitioners who get themselves fairly deep into trouble.  It means that those whose practising certificates are not renewed may continue to practice and earn income to put towards the legal costs of challenging that decision, and it also means that such practitioners may brief counsel directly in circumstances where, by virtue of Bar rules about direct access, they might not otherwise be able to.  And of course, it also means that if successful in such proceedings, they will get a costs indemnity against the time spent running their litigation.

Mr Forster is a man with his back to the wall, the subject of an avalanche of litigation brought by professional regulators.  Until recently, he had been singularly unsuccessful and much chastised.  It is probably fair to say that some people in the administration of justice, including the profession, would see him as a pariah.  It ought therefore be of some comfort to those responsible for the justice system that this result has obtained.  It suggests that the cab rank principle is alive and well, that judges are capable of dealing with each case impartially on its merits and according to law without being unduly influenced by past cases, and that the State will not protect itself where the law requires that it be dealt with.

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Admissibility of material relevant to penalty at the liability stage

October 7th, 2015 · No Comments

In my experience, the Legal Services Commissioner generally assumes that material relevant to penalty is inadmissible at the liability stage.  So, for example, the Commissioner applied recently for leave to re-cross-examine a practitioner in a disciplinary hearing, after the close of evidence, in order to adduce evidence relevant to penalty by reference to ‘disciplinary priors’, even though the practitioner did not propose to give further evidence.

I knew there was some case which said that under legislation cognate with the Legal Profession Act 2004 there is, in law, just one hearing, but it is one of those many authorities which, despite this blog, got away from me, never to be found again.  But now I have stumbled across it again, and here it is, from Puryer v Legal Services Commissioner [2012] QCA 300, a unanimous decision: [Read more →]

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Direct and vicarious liability of bodies corporate for conduct of natural persons

September 22nd, 2015 · No Comments

A woman sued a Melbourne school for injuries and distress occasioned by its headmistress’s sexual abuse of her as a girl.  Represented by Lennon Mazzeo solicitors’ Nick Mazzeo, Dyson Hore-Lacy QC and David Seeman, she obtained judgment from Justice Rush of the Supreme Court of Victoria for $1.25 million, a substantial proportion of which was for exemplary damages.  The exemplary damages were awarded in part because as soon as persons at or associated with the highest levels of governance at the school decided there was substance to complaints of abuse by the headmistress, they arranged and paid for her to fly most hastily to Israel on a one-way ticket instead of reporting the claims to the police and allowing local justice to take its course.

Justice Rush provided an instructive summary about when a body corporate itself may be said to have acted through a person and when it is only vicariously liable for the actions of a person acting, for example, as the company’s employee.  It is set out below.  The application of that law to the facts followed at paras [95] to [118], and resulted in a finding that the school had sexually abused the girl.  See Erlich v Leifer [2015] VSC 499. [Read more →]

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