March 6th, 2014 · No Comments
I have been saying for a while now that Schapelle Corby’s saga is a case study in the importance of choosing your legal team wisely. Moss v Eagleston  NSWSC 6 provides further analysis of the performance of a lawyer selected by another of the players in the saga. That selection was a selection made by a man without the resources to pay for orthodox representation and who obtained rather unorthodox representation.
The decision examines the scope of a duty of care, including by reference to an argument that pro bono work requires a lower duty of care, and the appropriate response to late assertions of the defence of advocates’ immunity, and demonstrates how the courts will deal with a claim of loss suffered as a result of a failure to provide promised legal representation at a trial.
William Moss, also known as William Miller, is a former criminal. You can see him and hear him in this video. He says that he was supposed to pick up a package in return for a substantial sum and that shortly after Schapelle Corby’s arrest, he was told not to bother because it had ended up in Bali. He believed that these facts strongly support Ms Corby’s protestations of innocence. The Daily Telegraph published the claims. He says they ratted on a promise to pay him $250,000, or at least that they conned him into divulging his claims to them in the expectation of receiving that sum. They then published articles which were defamatory of him with the imputations that he was a small time shyster lying to get cash. So he approached lawyers. Quite a few of them. Finally he found one who would act for him: the firm Reimer William Winterson of Penrith. They sent a letter of demand for damages for breach of an oral agreement. The publishers denied the agreement. The firm ceased to act. [Read more →]
More articles on: Advocates' Immunity · Barristers' immunity · Causation · Negligence
March 3rd, 2014 · No Comments
A decision of the Supreme Court of Queensland has made clear what ought to be more obvious than it appears to be, namely that costs disclosure defaults will not result in the setting aside of a costs agreement in the absence of evidence that the non-disclosures had some effect on the client’s decision to enter into the costs agreement on the terms in fact adopted between the solicitor and client. [Read more →]
More articles on: Costs agreements · costs disclosure defaults · Professional fees and disbursements · setting aside costs agreements
March 2nd, 2014 · No Comments
This post, based on research by Zoe Dealehr, collects together the various Bar conduct rules around Australia relating to the requirement of a proper factual foundation for making allegations of criminality, fraud and other serious misconduct as well as for allegations in litigation more generally.
First of all, the relevant Victorian rules are set out. They are more detailed than the other states’ and territories’ rules. Apart from Tasmania’s, the rest of Australia’s conduct rules for barristers are almost uniform and are similar to, but different from Victoria’s.
Tasmania appears to have no conduct rules on the subject, but it is said that it is soon to adopt the national rules which are the foundation for the non-Victorian rules.
[Read more →]
More articles on: Alleging fraud & misconduct · duty to court · Ethics · litigation ethics
February 26th, 2014 · No Comments
The irresponsible advancement in litigation of allegations of fraud undoubtedly triggers the jurisdiction to award indemnity costs and even to make personal costs orders: White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, approved on appeal at (1999) 87 FCR 134, discussed in this post.
But what about responsibly advanced, but ultimately unsuccessful, allegations of fraud? In a leading case, Woodward J said:
‘It is sometimes said that [special] costs can be awarded where charges of fraud have been made and not sustained; but in all the cases I have considered, there has been some further factor which has influenced the exercise of the court’s discretion: for example, the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties’.
That statement has been followed subsequently and, in my view, very likely represents the law in Australia.
Nevertheless, it is possible to find statements made, apparently without consideration of Woodward J’s observation, in cases and commentaries which appear to say that the mere failure of a fraud allegation justifies departure from the usual rules of thumb in to costs. Professor Gino Dal Pont’s outstanding Law of Costs speaks of ‘the “rule” that a party alleging but failing to prove fraud is deprived of costs even if successful in the action generally’ without citing Australian authority, before suggesting that it is too broadly formulated.
Conduct rules often require lawyers in Australia to make allegations of criminality, fraud and other serious misconduct only after having warned their clients of the consequences of doing so and obtained specific instructions to go ahead and make the allegations (e.g. Victorian Bar Conduct Rules, r. 34). Quite what such an advice ought to contain is, I suspect, not immediately apparent to most lawyers. Conceivably, uncertainty about the content of this obligation, and fear about costs consequences even in the absence of misconduct on the part of those responsibly advancing fraud allegations, are matters which contribute to allegations of fraud being made so rarely. It would be helpful if the law in relation to the consequences of failing in a responsibly advanced serious allegation were clarified and more widely disseminated throughout the profession. [Read more →]
More articles on: Alleging fraud & misconduct · duty to court · Ethics · litigation ethics · Vic Solis' Conduct Rules
February 11th, 2014 · No Comments
Clyne v New South Wales Bar Association (1960) 104 CLR 186;  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. [Read more →]
More articles on: "disgraceful and dishonourable" · Abuse of process · Alleging fraud & misconduct · Discipline · duty to court · Ethics · Evidence · Legal writing · litigation ethics · Misconduct · prosecutors' duties · Striking off
February 10th, 2014 · No Comments
I’m speaking on Friday at the National Costs Lawyers Conference in Melbourne. My topic is the civil and disciplinary consequences of making serious allegations without an adequate factual foundation. Obviously, some of those consequences include costs orders. The Civil Procedure Act 2010 (Vic) takes things further than the obligations imposed on lawyers previously and provides a smorgasbord of hitherto unexplored remedial powers to trial judges and the Costs Court alike. The new solicitors’ conduct rules which are on their way to Victoria will extend solicitors’ obligations too in small but important ways. Think ‘allegations’ rather than ‘serious allegations’, in fact these days.
$450 gets you 6 CPD points across four categories including (thanks to me) ethics, some lunch and some wine. But you wouldn’t pay all that money just to hear me. You’d pay it to hear the Supreme Court’s Justice Croft give the keynote address, Dr Sue McNicol SC talk about legal professional privilege in taxations (I’m so waiting to have her authoritatively sort out this hoary chestnut for me), Federal Court Registrars Pringle and Burns on party-party taxations in the Federal Court, a psychologist on professional wellbeing and a panel including Cate Dealehr and two eminent interstate costs lawyers updating delegates on recent cases on costs disclosure and costs agreements.
More articles on: Uncategorized
February 3rd, 2014 · No Comments
Eleven and a half years after a 2002 car accident south of Port Headland a radiologist has been found guilty of the Westralians’ version of professional misconduct (‘improper professional conduct’) but not of conduct which peers would regard as disgraceful or dishonourable, for failing to render medical assistance. The decision is Medical Board of Australia v Dekker  WASAT 182. It makes a bold assertion of general application without identifying or discussing any authority about the factual scenario in question, which must surely occur regularly all over the world and — one would have thought — be much pondered:
’39 It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.’
Civil liability in tort has been imposed on a doctor who refused to attend upon an emergency involving a non-patient: Lowns v Woods  Aust Torts Reports 81-376 (NSWCA). But in that case the then proximity-based test for establishment of a duty of care was satisfied by a number of factors which included that:
- a request was made for assistance in respect of what the doctor understood to be a medical emergency which he was willing to provide (but only on the condition that the patient be brought by ambulance to his practice);
- he was specifically told that ‘We need a doctor. We have already got an ambulance’;
- he was able to do so: he was at work, available, competent at administering the requisite treatment, and could have done so promptly being only 300 m away from the patient;
- to attend involved no threat to his person;
- he was not incapacitated so as to make giving treatment more difficult: he was not drunk, or ill, or tired; and
- there were statutory provisions which made it misconduct to fail to render assistance to a person in urgent need of medical attention without reasonable excuse.
See Kylie Day’s ‘Medical Negligence – the Duty to Attend Emergencies and the Standard of Care: Lowns v Woods” (1996) 18(3) Sydney Law Review 386.
The tortious duty was squarely founded on the fact of a request in a professional context for treatment of the kind in which the doctor practised. Public policy was expressly acknowledged as relevant to the determination of the tortious liability. Since the existence of a professional obligation was a matter that told in favour of the development of a new category of duty of care, civil lawyers ought not be entirely blase about the latest apparent development of the disciplinary law courtesy of the Westralians.
[Read more →]
More articles on: doctors · Duties to third parties · mental illness · Misconduct
January 25th, 2014 · No Comments
This post is a case note of Justice Goldberg’s famous decision in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169;  FCA 806 as well as of associated decisions and surrounding controversy. Because it is what I am working on at the moment, it concentrates on that part of the case which relates to the unjustified pleading settled by Ian Callinan QC and signed by his instructor Michael Meadows, alleging that the builder lied to the developer in relation to the cost of building a shopping centre just north of Brisbane. It’s a big post, to kick off the year.
Facts (not all drawn from the judgments)
George Herscu died just before Christmas, aged 85. He was the alter ego of a property development group headed up by the Hersfield Development Corporation. According to 4 Corners, he was the biggest property developer in the country. According to The Australian, he lived in a Toorak mansion, owned a Melbourne Cup winner, and was once the third richest man in Australia after Robert Holmes a Court and Kerry Packer, one place ahead of Alan Bond. He was a millionnaire by 30, and made and lost a fortune of $500 million. He left Australia for California in 1997 and rebuilt substantial wealth. Towards the end of his life, he was engaged in bitter litigation with his son, who described him as ready to spend whatever is needed to “crush anyone that stands in his way”. Ironically, given what follows, Mr Herscu’s lawyers accused the son of mis-using the deposition process. According to The Australian, they said:
‘Your clients’ continued insistence on trying to push an 80-year-old man with hypertension, a heart condition, failing hearing and many other health problems into a deposition room – having already deposed him for 27 hours – is shocking and wrong. The only conclusion one can reasonably draw from your clients’ posture is that their litigation strategy involves attempting to subject George Herscu to so much stress and pressure he simply dies. To use the tools of discovery for this purpose is reprehensible, and indeed revolting.’
Very alarmingly, he was asked in those depositions about allegations that he had watered down the beer in a pub. [Read more →]
More articles on: Abuse of process · Alleging fraud & misconduct · Client Legal Privilege · duties regarding witnesses · duty to court · Ethics · litigation ethics · Professional fees and disbursements · Wasted costs
January 7th, 2014 · No Comments
Friends, I need your help, again. Certain promises I made to write about and present on the civil and disciplinary consequences of making allegations of serious wrongdoing (e.g. fraud) without a proper foundation are coming home to roost. I’m looking at:
- disciplinary sanction of lawyers via Legal Services Commissioner, etc. prosecution;
- personal costs orders against lawyers;
- costs consequences for parties (common law in relation to exercise of the unfettered discretion re solicitor-client rather than party-party costs and displacing the presumption that costs follow the event where allegations of fraud are not made out, and Civil Procedure Act 2010 (Vic.)); and
- what is a ‘proper foundation’?
My miserable situation in this season of sun, frivolity and child-minding is a need to work out what these consequences are so that I can provide learned disquisition. In the process I have learnt something about Dr Peter Clyne, the protagonist of Clyne v NSW Bar Association (1960) 104 CLR 186;  HCA 40. What a wonderful addition to my knowledge of the rogues’ gallery of which I consider myself a connoisseur; I even bought his autobiography on eBay today but his ‘How Not to Pay Your Debts’ is still available. The Hikers described his conduct during the course of an ‘orgy of litigation’ between his client, the husband, and the wife as ‘irresponsible’, ‘mischievous’, ‘objectionable’, indefensible, ‘inexcusable’, and, rather wonderfully I think, ‘monstrous’. A unanimous Dixon Court confirmed the good doctor’s striking off. You can read about his life afterwards, including as a Magistrate in Zambia, here, and possibly less reliably, here.
So here is a general call-out for good authorities on these questions, especially decisions which really assist in understanding what a ‘proper factual foundation’ is, since many authorities relate to allegations which are so obviously unsustainable that they do not really illuminate where the line lies between the merely poor and the truly discreditable argument (Clyne), or proceed on the basis of admissions (AM v Legal Practitioners Disciplinary Authority  NTSC 02), or are fantastically complicated (the case just referred to and Victorian Bar Inc v CEM QC  VCAT 1417). I would also be very grateful for any detailed commentaries on this aspect of the conduct rules for solicitors and barristers alike, and Australian decisions in relation to costs (since many of those cited by Dal Pont are Canadian or English).
More articles on: Civil Procedure Acts · Discipline · duties regarding witnesses · duty to court · fraud · Legal writing · litigation ethics · Misconduct · Professional fees and disbursements · prosecutors' duties · Striking off · Vic Solis' Conduct Rules · Wasted costs
January 4th, 2014 · No Comments
Believe it or not, my costs law practice once saw me act for a toddler murderer. Annie Cossins, a NSW academic, has written a book about Sarah & John Makin which reveals that many a small child has been murdered in Australia: The Baby Farmers (Allen & Unwin, 2013). The Makins’ back gardens had 12 dead babies buried in them. She and her husband were tried for murder of one of them before a jury and the case went to the Privy Council on a tendency and coincidence evidence point which is still cited in evidence texts, e.g. Jeremy Gans and Andrew Palmer’s excellent Uniform Evidence (OUP, 2010) at [12.1.4]. Cossins analyses the fairness of the trial, concluding that the judge was out of his depth, and analyses in a layman-friendly way how the evidentiary issues in the case (in which the Makins sat mum) would be dealt with today. The Makins were wretchedly poor. One of them was hanged. There is a chapter entitled ‘Was Sarah Makin Really an Evil, Deadly Woman?’ Interesting stuff; as the blurb says the trial ‘exposed a shocking underworld of desperate mothers, drugged and starving babies, and a black market in the sale and murder of children … only a century ago’.
More articles on: Legal writing