May 18th, 2016 · No Comments
It’s Law Week. And a key event is a grand Bottled Snail event — ‘Terminus’ — combining the forces of Dan Walker’s Habeas Chorus, a choir of members of the legal profession, and Robert Dora‘s Melbourne Lawyers’ Orchestra, aka The Lawchestra, full of law students, barristers, solicitors, and a judge. It features, not very prominently at all, yours truly on second flute.
There is even a trailer you can watch here. There are two performances: afternoon and evening, this Saturday, in St Paul’s Cathedral (consider bringing a small cushion). You buy tickets here, and the profits will go to Bottled Snail which makes a substantial donation each year to the Tristan Jepson Memorial Foundation, whose aim is to improve the mental health of lawyers. Great strides are being made by our profession, a little late perhaps, but there is much more to be done with regard to mental health, as my own practice regularly reminds me.
W.A. Mozart’s last piece, his Requiem is the support act. Headlining the gig, though, is the Melbourne premiere of local composer Dan Walker‘s Last Voices, a setting of the last poems of D.H. Lawrence, Robert Herrick (a 17th century poet who begat ‘Gather ye rosebuds while ye may’), Elinor Wylie (a famously beautiful American poet popular in the roaring 20s), the American transcendentalist Ralph Waldo Emerson, and Thomas Hardy of Victorian England. It is beautiful and treads the line exquisitely between being accessible and being dumbed down. It’s tuneful yet dissonant. Modern, yet respectful of tradition. I love it. It’s not available on Spotify. There is not even a recording of it. It’s real yet improbably transitory. Either you come to the concert, or you miss out.
There are a lot of shows, and not much time. So I would not be surprised, unless you are a close relative or colleague of a performer, if you thought to yourself in contemplation of your own not so distant death — Life is too short to listen to community orchestras. But we’re absolutely nailing this one, and I have no hesitation in inviting you to come along in order to hear a great concert, rather than out of any sense of duty. If we were to attempt Bartok’s Concerto for Orchestra, it could be painful. But these two pieces are the gas.
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April 9th, 2016 · No Comments
In Council of the Law Society of NSW v MAG  NSWCATOD 40, a Sydney solicitor was disciplined for writing a private letter of complaint to a Federal Court judge the day after a decision was handed down, adversely to his client in favour of the Tax Man. The next day he wrote to the trial judge a letter not copied to the other side which commenced:
‘As solicitor for the Applicant in this matter, I have serious concerns about your conduct and decision in this matter. These are:
1. The somewhat immature and inappropriate comments you made to me …’ [Read more →]
More articles on: common law · Discipline · Ethics · Judges · litigation ethics · Misconduct
April 7th, 2016 · No Comments
An Appeal Tribunal within the ACT Administrative Tribunal has put out a neat little decision which makes clear that where solicitors do work and bill it, where the client does not seek taxation within the time for doing so, and the solicitors sue for fees, the tribunal hearing the suit for fees still has, in the ACT at least, jurisdiction to consider defences based on the quality of the work. In particular, work which may be said to have been wasted by virtue of negligence on the part of the solicitor will not be allowed by the Court. The lawyers in Williams Love & Nicol Lawyers Pty Ltd v Wearne  ACAT 18 essentially argued that they were entitled to sue on their bills as a debt once the time for taxation had passed.
In this case, the lawyers had negligently drawn a response to allegations of misconduct by an employee without obtaining the foundational document in which the allegations were actually made. When they belatedly obtained that document, the response had to be re-drawn. The Tribunal drew a distinction between a defence of waste as a result of incompetence and an argument that the fees were not ‘fair and reasonable’ in a more general sense, and confirmed essentially that the client had foregone the opportunity to mount ‘fair and reasonable’ arguments by not seeking taxation of the solicitors’ fees. Nevertheless, the Tribunal disallowed the suit for fees to the extent of the fees associated with the original drawing of the response. [Read more →]
More articles on: Negligence · Professional fees and disbursements · The suit for fees · Wasted costs
April 2nd, 2016 · No Comments
I only learnt in the last few years that Melbourne is one of the world’s great Jewish cities, with a globally significant series of communities of orthodox adherents. One of those orthodox communities has delivered up an interesting case. In Victorian Legal Services Commissioner v AL  VCAT 439, VCAT’s Acting President recently found a well known Melbourne solicitor guilty of two counts of professional misconduct, constituted by breaches of each limb of r. 30.1.2 of the solicitors’ professional conduct rules.
The rule prohibited conduct calculated to, or likely to a material degree to be, prejudicial to the administration of justice, or to diminish public confidence in the administration of justice, or adversely to prejudice a practitioner’s ability to practise according to these rules.
The practitioner’s disciplinary offence was first to state privately to his client’s father his disappointment after an orthodox Jew sitting watching someone else’s case in court had gone out of his way from the well of the court to assist police in the middle of a bail hearing in a criminal prosecution of the practitioner’s client. His second offence was committed when the man, whom I will refer to as the complainant since he lodged the disciplinary complaint which led to the practitioner’s disciplinary prosecution, rang the practitioner and asked him about comments to similar effect which the man had heard the practitioner had made, taping the call. The practitioner expressed directly to the man similar sentiments, expressly invoking the Jewish principle of ‘mesirah’ by which Jews who cooperated with secular authorities against fellow Jews in times and places where Jews enjoyed imperfect protection were ostracized. Jewish authorities have repeatedly said that the principle has no operation in modern day Australia in relation to criminal matters.
The Age has reported, in an article prominently featuring the practitioner, that victims of Jewish abusers have been pressured not to cooperate with police. It reported the Legal Services Commissioner as saying that ‘there was a general principle that made it impermissible for a lawyer to tell a witness they could not inform police about a matter because of a religious or community rule.’ I do not mean to criticise the Commissioner in this regard, because The Age sought his comments prior to the Commissioner’s receipt of the complaint, and the Commissioner was presumably simply responding to a general question about lawyers’ obligations towards witnesses in their cases. But what VCAT’s decision demonstrates is that the practitioner’s comments occurred after the conduct in question which the practitioner believed to have involved false statements based on misinformation, and were directed to a person who was not a witness and who, as far as the practitioner was aware, was simply someone who stood up in the well of the court and interfered in his client’s case. Given that, as far as the practitioner is said to have known, the man who stood up in court had no further role to play in the case or in his client’s drama more generally, it is hard to see how the practitioner could be said to have intended to pressure the man as a victim of a Jewish abuser not to cooperate further with the police in the future in bringing the abusers to justice, as seems to have been the implication. [Read more →]
More articles on: "disgraceful and dishonourable" · Briginshaw · common law · Discipline · duty to court · Evidence · litigation ethics · Misconduct · Rule of law · Vic Solis' Conduct Rules
March 31st, 2016 · No Comments
Today is the end of the CPD year, and the last day of operation of the Victorian Bar’s Continuing Professional Development Rules 2008 in Victoria. They are hard to find now, but you can access them here. The Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 were made on 26 May 2015 and commenced on 1 July 2015. You can access them here. But the relevant Committee of the Victorian Bar recently determined that compliance with the old rules would be deemed to amount to compliance with the new ones for the current CPD year. The page on the Bar’s website with recent CPDs’ videos and other resources may be accessed (by barristers only) here. The most significant (possible) difference between the new and old rules for barristers other than new barristers seemed to be in relation to what amounts to a CPD activity. Under the new rules, a CPD activity must be: [Read more →]
More articles on: Legal Profession Uniform Law · Practising certificates · Professional regulation
March 19th, 2016 · No Comments
Some cases are just dead interesting. Dunnage v Randall  2 WLR 839,  WLR(D) 287,  EWCA Civ 673 is one of them. A man sued the estate of his late uncle for compensation for injuries he suffered when his uncle poured petrol on himself and set it alight. Despite the man’s efforts to prevent this tragedy, his uncle, a sufferer of schizophrenia, died. The man jumped off a balcony to escape, having suffered burns. Now you might think it heartless to sue to the disadvantage of the beneficiaries of the uncle’s estate in the circumstances. But of course there was an insurer to upset the analysis. The uncle was insured under a household policy against liability for accidentally causing bodily injury. It was the insurer arguing that the mad have a different duty of care. The trial judge agreed. The Court of Appeal reversed. Lady Justice Rafferty’s leading judgment is stylish.
More articles on: defences · mental illness · Negligence
March 18th, 2016 · No Comments
In Cairncross v Anderson  NSWSC 258, Justice Button was asked to summarily dismiss a negligence claim against a solicitor on the basis that it was doomed to fail by virtue of the solicitors having taken the defence of advocates’ immunity. The negligence is said to have arisen in the course of the Great Southern proceedings in the Supreme Court of Victoria. In the course of the decision which the Court made yesterday to put the strike-out motion on ice, part-heard pending the High Court’s judgment, the judge had to assess the likelihood of the law changing. This is what he said:
- First, a reading of the transcript of the special leave hearing establishes that (to use a phrase that I used in discussion with the parties at the hearing) there is a “reasonable circumstantial case” that the High Court will undertake a “root and branch” reconsideration of the immunity.
- Secondly, the parties respectfully predicted that the hearing of the appeal in the High Court would take place in March 2016, and that one might expect a judgment some months after that. Indeed, as at today the hearing in that Court has concluded, and one may respectfully expect a judgment shortly.
- In other words, I think it quite possible that the fundamental legal principles that underpinned the motion placed before me could be subject of significant revision by the ultimate court of this nation within three months or so, and within six months of the hearing of the motion.
I certainly hope that the immunity is abolished or greatly reduced in scope. I am sick of charging people with good cases against litigation lawyers money to tell them that they should not sue, or that if they choose to sue there is a risk that their claim will be struck out with costs.
Just the other day, the Supreme Court of Victoria ruled that a solicitor who failed to tell his client the trial date, failed to prepare any evidence or arguments, failed to brief counsel to appear, and failed to turn up, so that the case proceeded undefended, unbeknown to the client, and the client lost catastrophically, was protected by the immunity in respect of that conduct. The immunity has been held to extend to intentional torts, fraudulent conduct, and a failure to tell a client about a settlement offer which went unaccepted and turned out to be a lot better than the result obtained at trial.
More articles on: Advocates' Immunity · Barristers' immunity · defences · Forensic immunity · Negligence
March 14th, 2016 · No Comments
Ok, so the High Court is still ruminating after the recent hearing of an appeal from Jackson Lalic Lawyers Pty Ltd v Attwells  NSWCA 335 in which the immunity was again challenged. And advocates’ immunity was probably already abolished in certain respects in Victoria by the Civil Procedure Act 2010, s. 29 of which gives anyone who suffers loss as a result of a lawyer’s breach of the overarching obligations in litigation a right to seek compensation from the court (but not VCAT) in which the case was conducted. But I just noticed something else not mentioned in any of the submissions, and about which I have heard not the faintest whisper of chatter more generally. Chapter 5 of the new uniform legislation in force in Victoria and NSW allows compensation orders to be made for professional negligence and appears to abrogate advocates’ immunity in relation to those kinds of claims. Section 263(1) of the Legal Profession Uniform Law, which has been in operation in Victoria and NSW since 1 July 2015, says:
‘A provision of this Law or any other applicable law that protects a person from any action, liability, claim or demand in connection with any conduct of the person does not affect the application of this Chapter to the person in respect of the conduct.’ [Read more →]
More articles on: Advocates' Immunity · Legal Services Commissioner · National Profession Uniform Law · Negligence
March 11th, 2016 · No Comments
A man took 5 times his usual dose of phenergan for his excema before a mediation in a Costs Court matter in which he sought to tax his former solicitor’s fees. Represented by a solicitor, he settled the taxation. It is an interesting footnote that the man’s solicitor was from the rather wonderfully named Coolabah Law Chambers, and is described on the firm’s website as follows:
‘Although Jeff has sincere respect for the Bench, he is not afraid to argue and fight for his clients. Jeff believes that each of his clients must be properly represented and must receive a ‘fair go’. To appreciate Jeff’s keenness one has only to learn of one occasion when, during his closing address to the jury, Jeff performed an impersonation of Austin Powers in “The Spy Who Shagged Me”. Jeff’s client was successful in that case!’
The man applied, unrepresented, to the Costs Court to have it set aside on the basis of the solicitor respondent to the taxation had taken unconscientious advantage of his phenergan intoxication in procuring the settlement. The Costs Court referred the question to the Practice Court.
The Practice Court considered whether the determination of a mixed question of fact and law was one which could be the subject of a referral by the Costs Judge for ‘directions’ to a judge of the trial division under r. 63.51. Bell J said it could.
But his Honour ruled that the Costs Court did not have jurisdiction to hear that question and so made the man commence a fresh Supreme Court proceeding for a declaration:  VSC 417. Bell J found that the Costs Court is a ‘statutory court of limited jurisdiction’. That is interesting because presumably when the same work was done by the Taxing Master, the Supreme Court itself would have been exercising its unlimited jurisdiction so the creation of this Costs Court has complicated things.
Bell J found that the Costs Court did not have jurisdiction and so could not refer the proceeding to the Practice Court. The question which, on one characterisation, was whether the Costs Court should enforce a settlement of a Costs Court proceeding at a mediation ordered by the Costs Court was not one arising in the course of ‘assessment, settling, taxation or review of costs’ and so not within the Costs Court’s jurisdiction as described in s. 17D of the Supreme Court Act 1986. Not even within the grant of such additional power to the Costs Court as is necessary to do its job in sub-s. (2). Emerton J’s decision in Gadens Lawyers v Beba Enterprises  VSC 519 about the Costs Court’s jurisdiction was not cited to Bell J, who reasoned:
‘It is true that, in the circumstances of the present case, the issues raised by the application to set aside the agreement are connected with the ‘assessment, settling, taxation or review of costs’ because, in great part, the agreement settled the issues relating to those matters in the Costs Court. But a connection with those matters is not enough. The issues must actually relate to those matters. The issue is not that the set-aside application raises substantive issues of mixed fact and law, which it does, but that those issues do not relate to the ‘assessment, settling, taxation or review of costs’.’
So the man duly commenced a new proceeding which a judge of the Court referred back, perhaps a little paradoxically, to an Associate Justice who was not the Costs Judge for determination. If you’re expecting a happy ending for the doughty self-represented client-plaintiff after this procedural buffeting, I can’t help you. Derham AsJ found that the solicitors had been ignorant of any excema-related intoxication under which the plaintiff laboured and dismissed his application to set aside the settlement: Owerhall v Bolton & Swan Pty Ltd  VSC 91.
More articles on: Costs Court · Professional fees and disbursements · Taxations
March 2nd, 2016 · No Comments
Professor Dal Pont’s excellent text Lawyers’ Professional Responsibility (5th ed., 2013) suggests at [23.145] that mental illness will rarely provide a defence to a disciplinary prosecution, the purpose of which is protective rather than punitive. He argues, in part, that the public needs protection just as much from the mentally ill who do bad things as from the mentally flourishing who do wrong. But that reasoning does not have any application where there is not a temporal proximity between the moment of determining liability and the moment at which the putative wrongdoing occurred. In my experience the glacial pace of disciplinary investigations usually mean that the time for setting sanctions is years after the conduct in question. Very often, I find myself acting for practitioners whose minds are flourishing much more than at the time of their wrongdoing.
I always thought (or perhaps more accurately, hoped) that Dal Pont was a little pessimistic about the possibility of mental impairment being relevant to the determination of the question of whether unsatisfactory professional conduct or professional misconduct is. True, there are some decisions broad statements in which support that position, but the authorities are a bit all over the place, and there are so many different kinds of conduct warranting discipline and so many fact scenarios that it seemed to me that the law must be more nuanced than some of those broad statements suggested.
Last year, VCAT’s Legal Practice List last year ruled, contrary to the position advanced by Victoria’s Legal Services Commissioner, that evidence of mental impairment was relevant to the question of whether conduct was professional misconduct or unsatisfactory professional conduct, and heard evidence from a psychologist during the liability phase of the hearing. The two species of conduct warranting discipline arising from a breach of the rules have traditionally been delineated by enquiring whether the breach was innocent or whether it was deliberate or reckless, so that it clearly incorporates a subjective enquiry. VCAT’s decision to hear the psychological evidence on the question of liability was, as I have learnt in the course of penning this post, consistent with that in New South Wales Bar Association v Butland  NSWADT 120.
Now the Supreme Court of NSW has reviewed the authorities and published a useful decision in the matter of BRJ v Council of the New South Wales Bar Association  NSWSC 146 (Adamson J), making clear that mental illness may be relevant to the question of liability, as well as to the question of penalty where it is of course of critical relevance, citing Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977), a decision I have not come across before. Essentially, Justice Adamson said, it all depends on whether there was a mental element to the kind of conduct warranting discipline which is charged. Conduct described as a failure to maintain standards of competence and diligence is not something to which the practitioner’s mental impairment is relevant. In charges which rely on the practitioner having a particular state of mind do require analysis of the degree to which the practitioner’s state of mind was flourishing. Professional misconduct at common law is determined by what competent and reputable peers would think of the conduct. What they would think is affected by the degree to which the practitioner’s mind was flourishing at the relevant time.
Unfortunately for the barrister who was the subject of the disciplinary hearing under appeal in this case, all this meant that though the Tribunal and the Court accepted that her conduct was caused by her psychiatric illness, she was nevertheless properly found guilty of unsatisfactory professional conduct constituted by failing to maintain standards of competence and diligence and acting in the face of a conflict between self-interest and duty to her client. The test for such unsatisfactory professional conduct does not enquire into the mind of the practitioner, the Court found. Accordingly, the psychiatric causation was legally irrelevant.
See also this sister post, about the disciplinary Tribunal’s and the Supreme Court’s willingness to allow the practitioner to change her plea, once after the liability hearing but before the delivery of reasons and once on the eve of the hearing of the appeal.
[Read more →]
More articles on: "disgraceful and dishonourable" · appeals · common law · Discipline · mental illness · Misconduct · negligence as disciplinary breach · Unsatisfactory conduct · wilful disregard for rules