In the County Court, certification of costs above scale is often important.  The maximum fee specified in the scale of costs for expenses of an expert witness was about $1,800 at the time relevant to Astbury v Wood [2009] VSCA 126; 23 VR 302.  There, a senior neurosurgeon had given viva voce evidence on behalf of a plaintiff for about 2 hours in Warrnambool.  He had been driven to and from Melbourne as well on the same day.  He charged $8,800.  The trial judge certified the plaintiff’s party party costs, insofar as they related to witness expenses for this witness, at $8,800 on top of a generous travel allowance ($660).  The defendant appealed, contending that the County Court did not have a discretion to certify witness’s expenses above the amount provided for in the scale.  After a great deal of statutory interpretation, Justice of Appeal Ashley, with whom Justice of Appeal Redlich agreed, held that the County Court Act, 1958 and its rules of procedure, did allow the trial judge to certify for witness expenses above scale, and though certifications in such sums as was allowed in this case should not be commonplace, the Court of Appeal was not prepared to interfere with the trial judge’s discretion at first instance.

I cannot say that readers have been vocally demanding part 4 of my evidence paper in the period since part 3 appeared on 7 April 2010.  Nevertheless, in case anyone remains interested, here it is, with the balance to follow with a little more regularity.  I have created a category specific to this series of posts, being the serialisation of my evidence paper: click on it in the index page (or in the list of categories in the side bar of this page) to be taken to all of the posts comprising the series. [Read more →]

Even judges of appellate courts and legal regulators get it wrong.  Either I am getting grumpier or the error is becoming more common: [2009] NSWCA 278; [2009] NSWCA 379; [2010] NSWCCA 6. Even Chief Justices get it wrong: [2008] NZSC 55 at [54].

‘Practice’ is a noun.  ‘Practise’ is a verb.  So:

‘The practitioner’s firm enjoys a diverse practice across the areas traditionally within the competence of the High Street solicitor.  Formerly, she practised in the Crown Law Department before moving to Abu Dhabi and practising as a sole practitioner.’

If you know the difference between a noun and a verb, it is helpful to remember that ‘ice’ is a thing, and so a noun.  [Read more →]

Justice Bell yesterday allowed an appeal by Michael Brereton from the decision I wrote about here: see Brereton v Legal Services Commissioner [2010] VSC 378.  The matter is to be re-heard by the same tribunal.  Mr Brereton is making quite a comeback: see this article in The Australian.  Some entertainment for readers of this blog should follow if he makes good his stated intention to sue the Legal Services Commissioner and the Law Institute.

A decision of the Supreme Court is another lesson in the perils of self-representation.  What started off as a failure to lodge income tax returns for a few years snowballed into a situation where the barrister’s intercourse with the judiciary and the Bar Association in relation to inquiries made by the Bar Association revealed him to be not a fit and proper person to hold a practising certificate, 42 years into his career at the Bar.  See JTB v Bar Association of Queensland [2010] QSC 306, the dismissal of an appeal from a decision not to renew the barrister’s practising certificate.

Recently, it has been suggested that misconduct unconnected with legal practice (which the High Court has referred to as ‘personal misconduct’) may constitute professional misconduct at common law: New South Wales Bar Association v Cummins [2001] NSWCA 284; Legal Services Commissioner v RAP [2009] VCAT 1200, the subject of this post.  This post considers whether that is correct, in light of A Solicitor v Council of the Law Society of NSW [2004] HCA 1; 216 CLR 253.  The answer to that question does not affect what I suggest may be a separate question, namely whether personal misconduct may warrant disbarment (which is clearly the case), since disbarment is not conditioned on a finding of professional misconduct, but is dependent on a finding of unfitness for practice.  I am interested to hear others’ views. [Read more →]

An English case has considered when instructions to put hopeless cases, or advance hopeless claims, may justify a solicitor terminating the retainer: Richard Buxton (Solicitors) v Mills-Owens [2010] EWCA Civ 122.  And here’s a useful case note from Barlow Lyde & Gilbert.  Of course this is the position in England; the position in Australia is not necessarily the same.

The English Court of Appeal also reminded lawyers of their duty to engage in fearless advocacy.  Many barristers get paid handsome sums to speak on their clients’ behalves.  Sometimes it is quite frankly embarrassing arguing points which you do not agree with, and which may not be very good.  Nevertheless, if they are arguable, it’s part of the job, and such arguments must be advanced with as much persuasive conviction as can be mustered.  There is a species of lawyer, a small majority of the general corpus, who expresses embarrassment about their client’s behaviour or contentions behind their back, lawyer to lawyer, wink wink, nudge nudge.  I am speaking of speech which goes beyond making proper concessions.  I regard such conduct with contempt.  The same behaviour may be seen in Court, a little more veiled; Lord Justice Dyson, with whom the other judges agreed, said: [Read more →]

The Supreme Court of New Zealand, their equivalent of our High Court, handed down a decision on the litigation limb of legal professional privilege on 12 August 2010.  Chief Justice Elias, with whom the rest of the Court agreed, held that:

• privilege could attach to an anonymous provision of information to a litigant (who happened to be a barrister) in relation to litigation, and the intention of the anonymous tipper-off-er is not determinative of the dominant purpose test;
• privilege could attach in the right circumstances to the identity of a person who makes a privileged communication, though often that person’s identity will not be privileged (as to the Australian position, see this post).

The decision is Jeffries v The Privacy Commissioner [2010] NZSC 99. It was decided under s. 56 of New Zealand’s Evidence Act, 2006.  That provision is sufficiently relevantly different from Victoria’s Evidence Act, 2008′s s. 119 that the unsolicited communication decision is of doubtful application, but the law stated in the decision is said to be the common law, and so still relevant in Victoria where privilege is relevant to the adduction of evidence in places like VCAT which are not covered by the Act, and outside of Court proceedings, for example pursuant to notices from the Legal Services Commissioner.  The common law authorities relied on by the Chief Justice were Bankim Thanki (ed) The Law of Privilege (Oxford University Press, Oxford, 2006) at [3.69] and Re Thomas Holloway (1887) 12 PD 167 (CA). [Read more →]

Legal Services Commissioner v Dempsey [2010] QCA 197 is an unsuccessful appeal from a disciplinary prosecution in which findings of dishonesty were made.

Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895 is a case in which an application for a costs assessment (NSW version of taxation) outside the allotted 12 month period succeeded.

Young v Masselos & Co [2010] NSWDC 169 is one of those cases where a solicitor negligently let a limitation period go by and damages had to be assessed based on the plaintiff’s prospects of winning the case foregone.

Council of the Law Society of New South Wales v Harrison [2010] NSWADT 201 is a decision about the Law Society’s successful application to amend a charge against the respondent solicitor.  It reviews a lot of NSW law about the requirements for pleading disciplinary charges, and considers the application of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 to disciplinary hearings.

Justice of Appeal Macfarlan with whom Justice of Appeal Tobias and Acting Justice of Appeal Sackville agreed said this in Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 at [42]:

‘Where, as here in the case of the respondent, a party is represented by competent and experienced lawyers and is opposed by litigants in person, the party and its lawyers have a duty to assist the court to understand and give full and fair consideration to the submissions of the litigants in person. In particular such a party must refer the court to evidence in the proceedings that is relevant to those submissions. This duty is accentuated where, again as here, the party is a substantial institution accustomed to litigating cases involving issues such as are involved in the present case, often against litigants in person.’ [Read more →]