The stats were not good. The world’s population grew by more than 80 million, with over 140 million births, taking the total to 7.7 billion, of whom 41% live in India, Pakistan and Bangladesh (formerly part of India), China and Tibet.
The combined population of China and Tibet still exceeds India’s, but only by 56 million. Their combined population was up .41%, while India’s was up 1.11% (both growth rates much less than Australia’s).
Australia’s population ticked over 25 million, increasing by a person every 83 seconds. According to Worldometer, Australia’s population increase of 1.32% is higher than just about any other wealthy country outside the Middle East. More than two-thirds of us live in the capital cities (but more Queenslanders live outside Brisbane than live in it). Victoria accounted for 37% of Australia’s population growth, more than that of NSW, South Australia, Tasmania, the Northern Territory and the ACT combined.
It was not a year of celebrity or otherwise notable deaths. The Grim Reaper must have saved them for a year sparse of spectacular executions by Trump buddies, which this year was not.
Aretha Franklin, the Queen of soul and a civil rights activist, and Stephen Hawking, both of whom lived amongst the stars, probably topped the international list of regular passings. Hawking was a great supporter of British Labor, of universal health care, nuclear disarmament, Al Gore’s presidential campaign, and anti-Brexit. He actively championed action against climate change.
Michael Cohen President Pussygrabber’s lawyer and fixer, Michael Cohen, exposed incidentally by the Mueller investigation as an outright crook, was sentenced to three years in America’s particularly unpleasant slammers for (amongst other things) inexplicably paying off women who allegedly falsely claimed to have had extra-marital relations with the President, a violation of campaign finance laws. One of the women, ‘Stormy Daniels’, sued the President for defamation over one of his tweets ‘A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!’ She said it insinuated that she had lied about the man whom she sketched having threatened her against going public with her allegations. The President had the suit struck out under a law designed to protect against strategic lawsuits against public participation (SLAPP), the judge ruling that the tweet was ‘rhetorical hyperbole’ protected by the first amendment. Ms Daniels is to pay the President’s legal fees (the claim was for 580 hours at up to US$840 per hour) fixed at nearly US$300,000.
Brett Kavanough The misconduct against Judge Brett Kavanough must not have been established to the satisfaction of the senate committee which confirmed President Pussygrabber’s nomination of the arch-conservative whose appointment imperils Roe v Wade. The hearing was excruciating in its hopelessness (highlights here); senators have no idea how to cross-examine.
If you want to read a real journalist’s wrap of The Year, see The Age here, another from The Age here, 7:30’s, the Saturday Paper’shere, or for a cheerier wrap, see The Guardian’s Brigid Delaney here. And this New York Times wrap of the year in photojournalism is great. I must acknowledge the heavy debt of what follows to Wikipedia, without which extraordinary resource much of which follows could not have been written by me.
Me, myself I had a lovely year, though I
must be getting old: a child from my reader’s course became a QC
(congratulations Dr Button QC); a kid below me at school is the Dean of Law at
the University of Singapore (Professor Simon Chesterman); a youth I used to
have morning tea with in Law School, Professor Carolyn Evans, is already an
ex-Dean of the Melbourne Law School; her boyish husband who was admittedly quite
good at mooting is the Solicitor General of Australia (Stephen Donahue QC); my
body got grumpy.
Not such a good year. Much appeared to happen in the United States, but the story is still emergent and so I might save that for next year. Furthermore, query what actually happened, as Tom Switzer pointed out recently. He also pointed out that Tump’s approval ratings were on par with Merkel’s, Turnbull’s, and Theresa May’s.
Nukes 2017 was a Korean kinda year, mostly because of the ‘BBC Dad’ interview of Associate Professor Robert E. Kelly, an expert on North Korea, a resident of South Korea, and a little bit because nuclear war kept threatening to erupt there (though the two Koreas are having their first public talk about peace in a long time). The memory of having children of the Professor’s children’s age is sufficiently fresh for me that the clip is one of the few things that makes me laugh out loud, over and over. It got better as it was revealed over time that the Professor was sporting jeans below his suit jacket and tie and would have looked even more ridiculous if he had got up, and it was enhanced by the wonderful mess generated by commenters mistakenly assuming the Professor’s wife was a maid.
Of course there was a serious undercurrent to this impeccable vaudeville which made it funnier. Or rather there was a serious undercurrent (possible nuclear annihilation) to the vaudeville of two leaders with bad hair to which the story was ancillary. Trump tweeted ‘I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man.’ Little Rocket Man infuriatingly let off a new nuclear weapon each time Trump advised that he was prepared to ‘totally destroy North Korea’ (e.g. in an address to the United Nations), with ‘fire and fury and, frankly, power like the world has never seen’. Given that North Korea might very well kill and injure 9 million people in Tokyo and Seoul very promptly upon being attacked (compare Hiroshima and Nagasaki’s about 200,000), Trump’s talk was hopefully absurd, but I doubt the Japanese thought it was very funny. Seoul is just 55 km from the border and there are batteries and batteries of conventional weapons pointed at it just over the border such that Pyongyang has an unusually profound non-nuclear deterrent to nuclear attack.
The North Korean said ‘I will surely and definitely tame the mentally deranged US dotard with fire.’ An evangelical adviser to Trump preached ‘In the case of North Korea, God has given Trump authority to take out Kim Jong Un. ‘
Last year saw reports that Tillerson had called Trump a ‘fucking moron’ after a meeting in which Trump expressed his wish to increase the US’s nuclear arsenal from 4,000 to 32,000 nukes. Trump also railed against the agreement between Iran and the US, UK, Russia, France, China, and Germany by which sanctions were lifted in return for Iran committing not to build a nuclear bomb and to suffer intense monitoring. Fitting then that Melbourne’s International Campaign to Abolish Nuclear Weapons, a bunch of doctors and Melbourne Uni types, won the Nobel peace prize in Oslo after 120 nations (not including any state with nuclear weapons, any NATO state, or Norway) adopted the Nuclear Weapons Prohibition Treaty. Africa, Latin America and most of South-East Asia, nuclear-free zones, promised en bloc not to assist the development, threat of the use of, or transport of nuclear weapons and to work towards a nuclear weapon free world.Continue reading “2017: Not Such a Good Year”
In Cahill v Victorian Legal Services Commissioner  VSC 177 (Keogh J);  VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the proceedings ended in what he regarded as inconclusive circumstances. He prosecuted the practitioner, who successfully sought judicial review on the basis that the Commissioner was not entitled to have a second go at the investigation. The Commissioner appealed unsuccessfully to the Court of Appeal. Apparently, that was the end of it.
Nothing is quite as un-fun as argument about transitional provisions, but it is often unavoidable, since disciplinary tribunals are usually creatures of statute, and if the new or the old statute is mistakenly invoked, the Tribunal may purport to exercise jurisdiction which it does not have, with the result that its orders will be nullities which may be disregarded even absent an appeal: The Herald and Weekly Times Pty Ltd v Victoria  VSCA 146 at . I suspect the people who dream up these things would say that counsel have an obligation to assist Tribunals to avoid over-reaching.
This post principally considers Griffin v The Council of the Law Society of NSW NSWCA 364, a judgment of Sackville AJA with whom Ward and Gleeson JJA agreed, and Council of the NSW Bar Association v Nagle NSWCATOD 104, a decision of the Hon F Marks, Principal Member.
If you have been the subject of disciplinary orders since 1 July 2015, you might want to dust them off and check whether the correct Applicant sought them under the correct legislation. If not, you might be entitled to disregard them, and require their removal from the disciplinary register.
To save you from having to puzzle over the detail of what follows, here is my summary, which assumes that you understand that Schedule 1 to the Legal Profession Uniform Law Application Act (Vic), which Schedule I refer to as ‘the LPUL’, stands as a law of NSW by virtue of the Legal Profession Uniform Law Application Act (NSW): Continue reading “LPUL’s transitional provisions”
In the Legal Profession Uniform Law (Vic), there are simple prohibitions, prohibitions breach of which are punishable by civil penalties, and criminal offences punishable by fines and jail. The civil penalty provisions are new to the LPUL compared with the previous legislation. What does it all mean? Continue reading “Bog-ordinary, disciplinary, civil penalty, criminal”
I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by victorious litigants who engage their lawyers on the basis of a greater variety of pro bono arrangements. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the last few days, I published parts one and two of the paper I distributed. What follows is the third and final part, which considers different kinds of client-favourable costs agreements (some quite esoteric) and analyses their indemnity principle implications. It also provides some thoughts on how to draft costs agreements for work done otherwise than on a purely commercial basis, and how to ensure counsel get paid. Part one is here and part two here
Species of client-favourable costs agreements
Options available to lawyers who wish to do work at less than their usual rates for non-commercial reasons include:
(a) not making any arrangements as to fees at all;
(b) charging your usual rates and leaving it to your discretion whether you send out a bill, or whether you forgive some or all bills given in the event that certain outcomes obtain;promising to do the work for free;
(c) agreeing to do the work at a reduced rate;
(d) doing the work on a no win = reduced fee basis;
I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by victorious litigants who engage their lawyers in a greater variety of pro bono bases. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the next few days, I will publish, in digestible chunks, the paper I distributed. What follows is the second part. Part one of this article is here.
In England, the stern sounding Bar Standards Board brought disciplinary proceedings against a black barrister, Portia O’Connor, the first barrister to become a partner in one of the very modern alternative business structures they allow in old Blighty these days. They succeeded but the decision was overturned on appeal and the appellate tribunal was not complimentary about the procedures of the Board. So the barrister sued the Board for discrimination. The regulator relied on limitation defences. The Supreme Court has just decided that the defences were misconceived: O’Connor v Bar Standards Board UKSC 78. Should be an interesting case.
Meanwhile, in Kaczmarski v Victorian Legal Services Board VSC 690 the Board, represented by an external firm of solicitors and experienced counsel, tried unsuccessfully to shut an unrepresented shareholder of an incorporated legal practice out of an appeal against the reappointment of an external manager to the practice. It did so by arguing for an extraordinarily strict and as it turned out quite wrong approach to what it said was an un-extendable 7 day time limit for appealing.
I must say I’m puzzled what all the fuss was about, in view of s. 155 of the Legal Profession Uniform Law Application Act 2014. That section makes clear that nothing in the LPUL limits or restricts the Supreme Court’s administrative law jurisdiction, so that the reappointment of the external manager might have been challenged by judicial review, for which order 56 of the Supreme Court’s rules provides a 60 day extendable time limit, or under the Administrative Law Act 1978 which provides a 30 day time limit. But neither side seems to have made argument by reference to it. The bases on which the decision might have been challenged, and the relief available might well have been different between the three avenues of challenge, of course. Continue reading “Supreme Courts tell legal regulators their limitation defences are bollocks”
I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by litigants who engage their lawyers in a greater variety of pro bono bases. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the next few days, I will publish, in digestible chunks, the paper I distributed. What follows is the first part.
The amendments to Order 63 of the Supreme Court’s rules and of Order 63A of the County Court’s rules are designed to overcome one aspect of the operation of the indemnity principle in costs law.
Simply put, costs are awarded as a partial indemnity to a successful party for that party’s liability to pay their own lawyers and witnesses and for such payments already made. The indemnity principle says that the amount allowed under a costs order may not exceed the total of those liabilities. Put most pithily, the loser’s costs liability cannot be greater than the winner’s fees and disbursements. Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 1”
VCAT has published reasons, the first I’ve come across, dealing with the allowance of costs under a costs agreement void for disclosure defaults: Sleath v RGL  VCAT 1998. Though they do not say so, it seems that the principal logic of the determination, under the same principles as the Costs Court is required to have regard to in taxations, was to keep the practitioners to their original written estimate notwithstanding subsequent oral updates. Scary stuff for lawyers if other decision makers reason similarly. Whether the Costs Court will reason similarly is an interesting question. It may be more likely that the Legal Services Commissioner will feel compelled to adopt similar reasoning in those costs disputes which it determines itself rather than referring off to VCAT. Good news for clients and third party payers if so. Continue reading “Holy moly! VCAT finds costs agreement void for ambiguous disclosure then orders solicitors to content themselves with original estimate”
An ACT practitioner seems to me to have been skilfully represented, escaping with findings of unsatisfactory professional conduct, a reprimand and a fine. The decision in Council of the Law Society of the ACT v LP ACAT 74 just shows how far cooperation and a persuasive articulation of remorse and insight can go.
The practitioner illegally sued his former client for fees in circumstances where he knew that the very person who had instructed him, a director of the client who had given a director’s guarantee and so was a third party payer, had sought taxation. Generally speaking, solicitors cannot sue their clients for fees once the client has commenced taxation.
In support of applications for default judgment, and to wind up the corporate client, the practitioner represented to the court, including on oath, that there was no dispute about fees. Given that the director, a builder, was the alter ego of his building company client, the proposition that the company did not dispute the fees attracted a charge of professional misconduct by swearing a false affidavit, a thoroughly serious allegation. By a plea bargain, it was downgraded to a weird charge of unsatisfactory professional conduct (varied by me for readability):
The practitioner breached his general law ethical duty of professional conduct or the duty owed to the director of his former client pursuant to Rule 1.1 of the Legal Profession (Solicitors) Rules 2007 to continue to treat the former client fairly and in good faith, and not to treat it otherwise than in an honourable and reputable manner during the dispute over costs owed by the director or the former client.
Rule 1.1 was itself a weird old rule:
‘A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.’
Professor Hampel has been telling me recently that the rule in the House of Lords’ judgment in Browne v Dunn (1893) 6 R 67 is much mis-understood by advocates and decision makers alike. Another judge apparently gives a talk to the participants in the Victorian Bar’s readers course each intake emphasising the narrowness of the obligation. Good advocates and judges, it appears, find unnecessary and inelegant recitations of strings of ‘I put it to yous’ as irritating as good advocates find irritating the suggestions from not so good decision makers that matters which were not required to be put to a witness must be put, or, after the event, ought to have been put.
The general tenor of these teachings is that there is an obligation to put matters to opposing witnesses less often than is sometimes assumed, or that a counsel of caution in putting things to witnesses to be on the safe side of the rule has its forensic downsides. As I understand it, the perception is that some counsel see the need to lay out their whole case to opposing witnesses to give them an opportunity to comment on it, regardless of whether the witness is already well appraised by witness statements or documents of the cross-examiner’s client’s case or whether the matters put in fact contradict or tell against any evidence of the witness.
Professor Hampel’s half-serious theory about the confusion flowing from the decision — that no one has ever read it — may be correct. Someone else seems to have had the same concern, having set up a website devoted solely to putting the hitherto obscurely reported and difficult to find decision on the net. (And, what do you know? The case is actually about relations between solicitors and clients which is principally about privilege and the liability of a solicitor to action for words spoken between solicitor and client.)
Update, 7 November 2018: the pendulum is certainly swinging in favour of pro se barristers being entitled to scale costs if they win: Pentelow v Bell Lawyers Pty Ltd NSWCA 150; Lake v Municipal Association of Victoria (No 2) VSC 660.
Update, 30 November 2017: The Full Court of the Tasmanian Supreme Court has weighed in, deciding that a practitioner who was admitted but yet to apply for a practising certificate was not a person to whom the Chorley exception applied: QRS v Legal Profession Board of Tasmania  TASFC 13, and that the exception only favours lawyers who held a practising certificate at the time they did the work.
Update, 24 October 2017: Readers have brought my attention to a couple of developments in relation to the law about the costs awards available to various classes of litigants who represent themselves. First, in Joint Action Funding Limited v Eichelbaum  NZCA 249 (14 June 2017), the New Zealand Court of Appeal decided that the Chorley exception in favour of lawyers who represent themselves is not available to a barrister who acted for himself. But as Andrew Beck pointed out in ‘Who Gets Costs? The Plight of the Unrepresented’  NZLJ 281 (I have a copy if you want one), the Court’s reasoning may affect a broader class of unrepresented persons, and the decision may in time come to be seen as a substantial inroad into the Chorley exception. Though the New Zealand High Court considered the Australian authorities in some detail, between the NZ case being argued and judgment being delivered, the NSW Court of Appeal delivered what seems to me likely to be a decision on rather similar questions in Coshott [sic!] v Spencer  NSWCA 118 (31 May 2017). Continue reading “Costs of the lawyer litigant: judgments all over the place”
Associate Justice Derham from time to time produces beautifully succinct and thorough summaries of the law, especially laws relating to procedure, in his careful judgments. Busy practitioners are very grateful. Here is his most recent such summary, from Fotopoulos v Commonwealth Bank of Australia  VSC 61. It is a helpful exposition of the substantive legal obligation which is sometimes referred to as an ‘implied undertaking’ or ‘the Harman principle’ after the House of Lords’ decision in Harmanv Secretary of State for theHomeDepartment  1 AC 280.Continue reading “The ‘implied undertaking’ which is really a substantive legal obligation”
Update, 10 August 2017: It once seemed to me having read Pizer’s Annotated VCAT Act (2015) at [8.60] that there was an argument to be made that the Evidence Act 2008 might have some operation to the extent that it is not over-ridden by s. 98 of the VCAT Act 1998, in that the Evidence Act 2008 empowers courts to do certain things which might not be described as part of the ‘rules of evidence’ referred to in s. 98. The Evidence Act 2008’s definition of ‘Victorian court’ (in whose proceedings the Act is said to apply) is inclusive of tribunals bound by the law of evidence, rather than excluding all tribunals which are not bound by the law of evidence, and VCAT has been regarded as a ‘court’ for various purposes. But the Court of Appeal has effectively decided (albeit without considering my thought) that the Evidence Act 2008 simply does not apply in VCAT: Karakatsanis v Racing Victoria Limited  VSCA 305 at  – .
Update, 9 August 2017: To gather the law together in one place:
(a) Pizer & Nekvapil, Pizer’s Annotated VCAT Act treats this question at [VCAT.98.160] citing Curcio v. Business Licensing Authority (2001) 18 VAR 155 at ; Pearce v. Button (1986) 8 FCR 408 at 422; Golem v TAC (2002) VAR 265 at [9(iv)]; Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd  VSC 191 at ; and Medical Practitioners Board of Victoria v Saddik  VCAT 366 at .
(b) A reader commended Justice Giles’s article ‘Dispensing with the Rules of Evidence’ at Vol 7 No 3 Australian Bar Review.
(c) Consider also Danne v The Coroner,  VSC 454, noted here.
Original post: Here is a useful collection of interstate and federal law about what statutes are actually to be taken to mean when they say that a tribunal is not bound by the laws of evidence (like VCAT), from Justice Refshauge’s reasons in Pires v DibbsBarker Canberra Pty Limited  ACTSC 283:Continue reading “Tribunals not bound by the laws of evidence”
The English High Court’s Justice Leggatt (now a judge of the Court of Appeal) was called upon to decide a claim for £14 million in which the plaintiff relied on a contract said to have been entered into at the Horse & Groom public house in Great Portland Street in London. (Freshfields’ case note is here). In Blue v Ashley EWHC 1928. His Honour reiterated earlier comments he had made to the effect that:
‘While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.’
The modern approach, his Honour essentially said, is to get all the authentic documents and study them carefully and then allow memory only to fill in the gaps. This is what his Honour said:
Often enough, judges refer the conduct of lawyers appearing before them (or disclosed by the case they are adjudicating) to the Legal Services Commissioner for investigation. A recent example is Re Manlio (no 2)  VSC 130. Judges also refer the conduct of non-lawyer parties to investigative agencies, e.g. where a tax fraud is suggested by evidence in the case.
Generally, this is not done pursuant to any statutory directive or authority. An exception is s. 202 of the Legal Profession Uniform Law which requires the Costs Court to refer a matter to the Legal Services Commissioner if it considers that the legal costs charged, or any other issue raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct. (Compare s. 3.4.46 of the Legal Profession Act 2004 which authorised rather than required the Taxing Master to make a referral.)