October 18th, 2013 · No Comments
In Attwells v Jackson Lalic Lawyers Pty Ltd  NSWSC 1510, a judge of NSW’s Supreme Court decided to summarise the law of advocates’ immunity in one paragraph:
An advocate cannot be sued by his or her client for negligence in the conduct of a case, or for work performed out of court that is intimately connected with the conduct of a case in court. Where a legal practitioner gives advice that leads to a decision that affects the conduct of the case in court, the practitioner cannot be sued for negligence on that account. The immunity extends to work done out of court that leads to a decision affecting the conduct of the case in court. Neither a barrister nor a solicitor may be sued by a client in respect of any conduct in the making of preliminary decisions affecting the way in which the case is to be conducted when it comes to a hearing. The immunity applies to the conduct of a solicitor as well as a barrister if the conduct otherwise qualifies for immunity. There is no difference between instructions given based upon negligent advice and the negligent carrying out of instructions if both are intimately connected to the conduct of the litigation. Advice in relation to the settlement of proceedings that leads to a settlement of a matter during the hearing falls squarely within conduct protected by the immunity. Advice that leads to a settlement prior to a hearing is also covered, whether or not court orders are made.
More articles on: Uncategorized
October 1st, 2013 · No Comments
In Carey v Freehills  FCA 954, the firm prevailed. Justice Kenny helpfully summarised the law in relation to the circumstances in which a solicitor will be found to have a duty of care to a person who has not retained him or her:
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More articles on: "professional negligence" · Duties to third parties · Negligence · Retainers
September 5th, 2013 · No Comments
Update, 23 September 2013: See also, to similar effect, but in relation to the Federal Court’s Rules: Territory Realty Pty Ltd v Garraway (No 3)  FCA 914. And in Metlife Insurance Ltd v Montclare, 4 September 2013, the Costs Judge, Wood AsJ, found that interlocutory orders made prior to 1 April 2013 may still be taxed forthwith even in the absence of a direction to that effect by the Court making the interlocutory order, despite the introduction of r. 63.20.1 which says that such costs shall not be taxed until after the completion of the proceeding unless the Court otherwise orders.
Original post: The rules in civil proceedings in the Supreme Court of Victoria changed not so long ago. Whereas the usual order in favour of a successful party was that the unsuccessful party pay the successful party’s costs on a party and party basis, but now the usual order is that such costs be paid on a new basis, the ‘standard basis’ the test for which is much the same as the test for the old ‘solicitor and client’ basis against which costs were ordered to be quantified in special circumstances, essentially misconduct during the litigation and not beating offers of compromises.
Sifris J has ruled authoritatively that for work before the commencement of the rule change, costs of a successful party are presumptively to be quantified on the old basis; the new rules in this regard do not have retrospective effect: Jane v Bob Jane Corporation Pty Ltd (No 2)  VSC 467. His Honour’s reasoning is reproduced below. Before I get to it though, may I suggest that solicitors review their costs disclosures to ensure that any adjustments to estimates of costs recoverable from the other side in litigation are brought up to date. More might now be recoverable than before, and certainly it would not hurt to substitute ‘standard basis’ for ‘party party basis’ if that language appears in solicitors’ precedents. [Read more →]
More articles on: costs disclosure defaults · Party party costs · Professional fees and disbursements
July 29th, 2013 · No Comments
I’m chairing what should be a great seminar for litigators at Melbourne’s RACV Club on 28 August 2013. Judicial Registrar Meg Gourlay who is one of the two decision makers who is handling most of the solicitor-client taxations in the State at the moment is the lead singer, talking about the changes to Order 63 of the Supreme Court Rules and the new Supreme Court scale which is no doubt the harbinger of new scales in other courts too. Despite my complete failure as a blogger to bring them to your attention, these are big changes: so big I have never quite got around to writing a post about them, a bit like the post about the decision in Fritsch v Goddard Elliott. So it is well worth finding out what the Costs Court figures they mean. Apart from anything else the more mysterious bits have been chopped out of the scale which means that lay lawyers uninitiated in the dark arts of that most mysterious of cabals — the costs lawyers — might actually be able to draw bills themselves with a bit of orthodox education, a spot of which the Judicial Registrar is going to engage in.
The band is pretty hot too. Anna Sango has bravely taken on the task of speaking about a strange new concept getting a workout at the salons of the most elegant cost lawyers: ‘proportionality’, absolutely all the rage I’m told amongst aristocrats in England whose favourite pastime seems to be inventing more rules for that greatest of all English board games, litigation. Frankly, it seems like a dangerously French concept to me, a sly limit on the individual’s right to litigate matters of principle and bugger the expense, but Sango will no doubt tell us that it’s more nuanced than that. Then, after all that esoterica, Paul Linsdell, one of the head honchos of the behemothic Blackstone Legal Costing will speak on tips and traps when arguing costs in litigation. The traps are newly refreshed thanks to the subject matter of Judicial Registrar Gourlay’s talk, and so this hoary old chestnut of a topic will be worth a listen. And then Debra Paver, who has given evidence in a few security for costs applications in her time, will speak on the inherently useful subject of how to argue for and against such applications.
I have two otherwise unbelievably expensive tickets available for enticing supplicants.
More articles on: costs disputes · Professional fees and disbursements · Solicitor client bills of costs · Taxations
July 14th, 2013 · 1 Comment
I have spent too much of the last couple of years considering what it is for a person to sign a document, as a result of a disciplinary prosecution of my solicitor client for forgery after he wrote his wife’s name on a guarantee pursuant to a written authority and then signed his name as witness to her signing. The case was decided on an unrelated technical point. But here’s what I’ve learnt about signatures, in a nutshell (some of it from you, dear readers):
- A person signs when they affix a mark indicating their assent to the document, either personally or by an agent: there is no obligation that people able to do so sign their usual signature or write their name;
- The agent may write the principal’s name or write their own (emulating the principal’s usual signature would presumably be problematical);
- An agent who affixes the principal’s signature may personally attest that signature;
- An agent who writes the principal’s name without the conventional ‘p.p [the principal]‘ or ‘per [the principal]‘ and without otherwise indicating that the document was signed through an agent generates an efficacious signature;
- Though there are Australian and UK cases in which the Court has not criticised witnesses who attest signatures affixed by agents despite the document bearing no indication of agency, there is also Australian authority that such attestation does not satisfy a statutory requirement for enforceability of a document that it be attested as having been signed ‘in the presence of the signatory’.
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More articles on: Evidence
July 12th, 2013 · 2 Comments
Readers of my last post but one would be forgiven for thinking that the cover for costs of disciplinary investigation and prosecution referred to is available to Victorian solicitors as well as for Victorian barristers. Turns out it is not, for the time being. Doctors and solicitors are different in that regard. It would be remiss of me not to mention that that gentleman of the profession, Geoff Gronow, provides invaluable free support to solicitor members of the Law Institute of Victoria who find themselves the subject of a disciplinary complaint in his capacity as LIV Members’ Advocate. And in Queensland, the Law Society has a scheme which provides free legal advice to solicitors who receive a letter from the Legal Ombudsman or the Law Society in a disciplinary investigation.
I’m sorry for the confusion I must have engendered. But the interesting thing is that the post obviously struck a chord, to an extent which surprised me and, it would seem, certain others. There are a lot of solicitors who would love to have this cover. Paddy Oliver at Lexcel, a risk management consultancy for solicitors, bemoans lawyers’ abject failure to manage what he refers to as ‘regulatory risk’. Perhaps solicitors are in fact more interested than they are given credit for, but frustrated by a lack of easy fix. So great has the interest been that Affinity had a fresh look at extending the cover to Victorian solicitors, and while it was doing so I held off on publishing this clarificatory post, but it seems that it’s not to be, for now at least. But if it is an issue that is important to you, tell Affinity that it is something you would purchase, and raise it with Raynah Tang, the (rather good) President of the Law Institute: @livpresident. [Read more →]
More articles on: Discipline · Insurance
June 29th, 2013 · No Comments
I have previously reported Justice Finkelstein’s views about the obligations of those who prosecute proceedings for a penalty (‘‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’). Barristers who are briefed by the Legal Services Commissioner in disciplinary proceedings have the same obligations as barristers briefed to prosecute criminal proceedings. But until tonight I was unaware that VCAT’s predecessor, the Legal Profession Tribunal, had actually indicated that the regulator himself (as opposed to his lawyers) owe obligations. In Victorian Lawyers RPA Ltd v Kaine  VLPT 16, Senior Member Howell, Victoria’s most experienced decision maker in legal disciplinary matters, said of the Law Institute (which was for a while formally named ‘Victorian Lawyers RPA Ltd’) that it owed:
‘the obligations normally owed by a prosecutor, such as the obligation to bring to the attention of the Tribunal or to the attention of the practitioner any evidence that might be favourable to the practitioner’.
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More articles on: Discipline · duties regarding witnesses · duty to court · Ethics · Legal Services Commissioner · litigation ethics · Professional regulation · prosecutors' duties
April 29th, 2013 · No Comments
In the financial year ending 30 June 2012, the Legal Services Commissioner in Victoria received 1,982 new complaints following 5,316 enquiries. When representing lawyers in disciplinary investigations and prosecutions, my fees generally come out of their own pockets. I have seen lawyers bankrupted by disciplinary prosecutions and others who have left practice and sought psychiatric assistance because of the trauma associated with them. This post provides some case studies of how ugly disciplinary investigations can get and points out that there is insurance available for the defence costs. [Read more →]
More articles on: Discipline · Insurance
April 13th, 2013 · 2 Comments
I have posted before about the Darwin solicitor whose disciplinary complaint against a fellow practitioner resulted in her being fined $19,500 for making that complaint without a proper factual foundation. I have just come across another case in which a female solicitor was disciplined for her intemperate allegations against another lawyer, despite having had an honest belief that she had a reasonable basis for making them: Legal Profession Complaints Committee v in de Braekt  WASAT 1. She was recently struck off:  WASC 124.
A panel provided over by a judge of Supreme Court of Western Australia and President of WASAT, Justice John Cheney, said in the earlier decision:
’107 Legal practitioners should be slow to make allegations of impropriety against other legal practitioners or their client. Such allegations should not be made unless there is a reasonable basis upon which to make them. The same can be said of allegations of abuse of process. It is apparent that the impropriety asserted by Ms in de Braekt was based upon her view that, having regard to the various matters upon which she relied, the winding up proceedings amounted to an abuse of process.’
I am looking at another matter at the moment in which a complaint has been made to a Legal Services Commissioner by one of the lawyers for one party to extant litigation against one of the other party’s lawyers, in relation to conduct which is itself the subject of the civil proceedings and which is in fact said to have generated the information on which those proceedings are founded. Even if the disciplinary complaint is stayed pending the exhaustion of appeals from the civil proceedings, it seems to me that the propriety of making a complaint in such circumstances is doubtful. Does anyone have any views, or — better — authority on the question?
More articles on: Abuse of process · Ethics · litigation ethics
April 13th, 2013 · No Comments
In Forster v. Legal Services Board  VSCA 73, Kyrou AJA, with whom Weinberg and Harper JJA agreed, restated briefly the law which requires lawyers to be absolutely honest in their dealings with Courts:
’161 In Meek v Fleming, Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client’s case. A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party. A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position. That obligation continues until judgment is given. [Read more →]
More articles on: duty to court · Ethics · litigation ethics