Oscar Warne, born on May Day, is distracting me from blogging for the moment.

Legal Services Commissioner v BH [2008] VCAT 687 is a case with terrible facts. A man died as a result of a crime. The family hired the respondent solicitor to act for them in crimes compensation applications. He lost the file some time into the second year of the retainer, but did not tell his clients. Late in the third year of the retainer, the Victims of Crime Assistance Tribunal struck out the claims for want of prosecution, but the solicitor hid the fact. Over a period of 6 months beginning a year later during which the 4th anniversary of the retainer fell, the solicitor made up a whole string of complete lies, telling his clients that VOCAT had made offers of compensation, but that they should be rejected, and that they should attend the fictitious trial.  The Commissioner urged the suspension or cancellation of the solicitor's practising certificate, but VCAT declined, instead fining him and imposing conditions on his ongoing practice. [Read more →]

The latest application for review of a decision of the Legal Services Board decision not to grant a practising certificate was in the matter of DAP v Law Institute of Victoria [2008] VCAT 688. The 57 year old solicitor and former Melbourne Cricket Club Committee member was a property lawyer at one of Melbourne's megafirms for about 27 years, many of them as a partner. Over the last nine of those years, he committed various acts of professional misconduct associated with the firm's trust account. Of course the megafirm was not always a megafirm. The solicitor was for most of his career in one of the firms swallowed up into the megafirm. Justice Betty King, in the solicitor's criminal prosecution said:

'6. The [offences] are at the lowest end of the scale of offences of this nature. The total involved was just over $9,000 and it was not money that at any stage was ever to be for your own spending. The money was directed into meeting the targets set by your firm for your department. All firms have become hard-headed businesses, with targets and budgets and six minute units which, I add, is, in my view, driving young lawyers out of the profession at a very rapid rate. You, unfortunately, had commenced practice when it was a profession and unlike its current incarnation. It would, of course, have been preferable to have approached your other partners and indicated that it was not possible to meet the budget that had been set for you and suffered the consequences of not meeting that budget. Instead, you chose this course of conduct, the one of stealing money from those accounts. That has resulted in far worse consequences for you, your wife, your children and the community that you had previously served so well. [Read more →]

Ok, so it's the man better known as Justice Mark Weinberg of the Federal Court of Victoria, but damn is the man a judge of many courts at once. If I read Deakin University's staff profile properly, his Honour is concurrently a judge of:

• the Federal Court;
• the Supreme Court of Norfolk Island (he sentenced Janelle Patton's murderer Glenn McNeil to a minimum of 18 years in jail last year);
• the Supreme Court of Fiji;
• the Supreme Court of the ACT; and
• the Federal Police Disciplinary Tribunal.

I cannot think of another Federal Court judge who has crossed over to the Victorian Supreme Court or Court of Appeal. The traffic has been the other way (think Justices Kenny, Nicholson, and Jenkinson).

Punishing as the existing appeal judges say their schedules are, do not be surprised if his Honour just adds the Court of Appeal to his portfolio of judging responsibilities. He presently holds positions at both Deakin and Monash Universities, and was previously the Dean of the University of Melbourne Law School. He has been the Chairman of the Leo Cussen Institute, a long-time member of the Australian Law Reform Commission, and the Commonwealth Director of Public Prosecutions. He wrote the Uniform Evidence Law (along with a couple of others). [Read more →]

In Legal Services Commissioner v SAC [2008] VCAT 576, a solicitor ignored the Bureau for over 6 months before the Bureau moved to prosecute him for non-compliance with the Commissioner's demands.  After the charge was laid but before it was heard, the solicitor provided an adequate response and apologised. Didn't do him any good though: he still copped a finding of misconduct, and has to pay $2,400 in fines and costs.  Member Butcher made this comment: [Read more →]

Sometimes, the slight elevation of my e-soap box causes me to give in to the urge to go off message. My apologies in advance. But the Prime Minister is embroiled in a so-called diplomatic row for having said 'there are significant human rights problems in Tibet'. The Chinese response was 'people in Tibet are now enjoying democracy and wonderful human rights protection'. What drugs are their speech writers on? Or have they been talking with Tariq Aziz (remember him from the beginning of the Iraq War?). Why, as a PR exercise, would you denigrate a smiley monk with a Nobel Peace Prize, whom everyone believes to be the Gandhi of our age in so preposterously old fashionedly Newspeak-like a manner as this Xinhua wonder with its claims which leap off the page as preposterous lies, absurd propaganda? Actually, I'd prefer it this way; it's better than a world run entirely by spin doctors, which must not be that far off given that Hamas spent £100,000 on a public relations job not so long ago. I like my propaganda to sound reassuringly like propaganda. [Read more →]

Chakera v Kuzamanovic [2003] VSC 92 is a decision of the Supreme Court of Victoria's Justice Nettle in relation to the effect of a default under the costs disclosure regime under the Legal Practice Act, 1996. It stands for the proposition that in the case of complete non-compliance with the costs disclosure regime, the solicitor is still entitled to recover legal costs, albeit possibly on a reduced basis. The consequences of non-disclosure were spelt out in s. 91 of the Act. That section made it clear that costs were recoverable on a quantum meruit basis even where there was no valid costs agreement. All sounds pretty obvious now, but a Magistrate, tactfully unnamed, was adamant that non-compliance with s. 86 of the Legal Practice Act, 1996 meant that no fees for work done in a retainer could be recovered. 'Nonsense!', Justice Nettle said.

Today, the correlate of s. 86 of the old Act is s. 3.4.9,and the correlate of s. 91 is the rather more complicated s. 3.4.17.

I prepared an application to restrain a firm of solicitors from acting in a Corporations List matter in the Supreme Court recently, and so have been reading the latest cases about conflict injunctions. The very latest is TJ Board & Sons Pty Ltd v Castello [2008] VSC 91, where the plaintiff applied unsuccessfully to restrain the defendants' solicitors from acting, and the defendants applied to restrain the plaintiff's solicitors from acting. Neither succeeded in convincing Justice Hollingworth. The first application is interesting in making some comment on:

• the materiality of the evidence which a solicitor must be likely to give; and
• the extent of a personal interest in the outcome of the litigation as a result of participation in the controversial events which a solicitor must have

before he or she will be enjoined from acting because of a conflict of duty and interest.

The second application is a relatively unremarkable application of the law relating to confidential information based conflicts which allegedly arose out of a pre-retainer 20 minute 'meet and greet' which did not lead on to a retainer. [Read more →]

In JLL v Law Institute of Victoria Limited [2008] VCAT 456, a Box Hill solicitor who had paid only $5,000 of the $55,000 odd he owed under orders of the Legal Profession Tribunal was given a practising certificate by VCAT, overturning a decision of the Law Institute not to give him one on the basis that he was not a fit and proper person. Judge Bowman said the Institute had been wrong to rely on past misconduct which had already been considered by the Legal Profession Tribunal, and in respect of which the solicitor should be deemed to have 'done his time', so long as he entered into a repayment plan. [Read more →]

It is well established in VCAT that when doctors and lawyers engage in professional activities in the course of their retainers, e.g. by giving advice, interviewing witnesses, and representing clients, they do not engage in trade or commerce: see for example Stagliano v Duke [2007] VCAT 1070, which I posted about here. Most Fair Trading Act, 1999 causes of action are available only in respect of conduct in trade or commerce. But is the workaround its consumer and trader dispute jurisdiction? The authorities are at odds with one another. [Read more →]