Stephen Warne on professional negligence, regulation and discipline around the world

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Applicant brings case beyond jurisdiction; respondent doesn’t take the point until the last minute; no one gets costs

May 1st, 2017 · No Comments

Jasmin Solar Pty Ltd v Fitzpatrick Legal Pty Ltd [2017] VSC 220 is a little case, but it is instructive about a number of things: solicitor-client taxations can take an awfully long time; some businesses probably don’t understand that they are ‘commercial clients’ and so fail to negotiate rights in lieu of the rights to seek taxation which, under the LPUL they no longer have; some lawyers no doubt have standardised disclosures which advise their clients that they have rights which, if they are commercial clients, they do not have; the costs proportionality provisions extend to cases where costs have become disproportionate as a result of a simple oversight by one or other side’s lawyers.

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→ No CommentsMore articles on: Costs agreements · costs disclosure defaults · Legal Profession Uniform Law · Professional fees and disbursements · Taxations

What can barristers charge for?

April 21st, 2017 · No Comments

I gave a presentation at the really well organised Junior Bar Conference this year.  The Bar sought questions which the junior barristers who attended wanted answers to.  One question, which I thought odd, but which I answered  earnestly, was ‘What can a barrister charge for?’  This was my answer:

The starting position is freedom of contract, such that barristers can charge for whatever they can get someone to promise to pay. The costs provisions of the LPUL (the Legal Profession Uniform Law (Victoria)) mostly do not apply in favour of commercial or government clients and commercial and government third party payers. There is newly room, therefore, for much greater creativity in contracting with such clients. Note the application of some provisions about conditional costs agreements and contingency fees, however, even in relation to such clients and such third party payers: s. 170. [Read more →]

→ No CommentsMore articles on: Costs agreements · Costs Court · costs disclosure defaults · costs disputes · Legal Profession Uniform Law · No win no fee · Professional fees and disbursements · Wasted costs

The Civil Procedure Act’s overarching obligation to keep costs proportionate

April 20th, 2017 · No Comments

The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to

‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7. [Read more →]

→ No CommentsMore articles on: Civil Procedure Act 2010 (Vic) · civil-disciplinary interplay · Discipline · Ethics · litigation ethics · Party party costs · pro bono · Professional fees and disbursements · Proportionality · Wasted costs

Appeals from VCAT on the basis of inadequate reasons

April 19th, 2017 · No Comments

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw. [Read more →]

→ No CommentsMore articles on: appeals · Discipline · Judges · Legal writing · VCAT · VCAT Act

The latest on pro bono costs agreements which preserve the possibility of a costs order against the other side

March 8th, 2017 · No Comments

For far too long, the law was unclear about whether costs agreements which said ‘We’ll only charge you if you win and only for work in respect of which we get a costs order’ actually worked.  The problem was that losing parties invoked the indemnity principle in the law of costs, arguing that what was recoverable under a costs order was nil.  The indemnity principle says that party-party costs awards are in no way punitive; they are wholly compensatory. Party-party costs orders are awarded as a partial indemnity to the winning party’s liability for their lawyers’ fees and other expenses of the litigation.  If the winning party has no such liability at the time of the costs order, there is nothing for the losing party to be ordered partially to indemnify.  Where the winner’s liability to pay their lawyer was conditional on a party-party costs order, there was, at the moment of making the costs order, nothing to indemnify.  Wentworth v Rogers [2006] NSWCA 145 was the leading case for many years.  Justice Santow’s dictum was favourable to pro bono solicitors while Justice Basten’s was unfavourable.  The third judge did not weigh in on this question.

What the judges in that case said, however, was obiter dicta.  Now there is a unanimous decision of the Victorian Court of Appeal which actually decides that this kind of costs agreement works; the winning party may obtain from the losing party a party-party costs order by way of a partial indemnity against the liability to pay their lawyers.  The case is Mainieri v Cirillo [2014] VSCA 227 and Nettle, Hansen and Santamaria JJA expressly preferred Justice Santow’s reasoning in Wentworth. It may be expected that state courts, including Courts of Appeal, elsewhere in Australia will follow the Victorian Court’s decision:  Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [134] and [158].

That is the good news though.  The bad news is that an unfortunate level of confusion still prevails in relation to costs agreements which are even closer to pure pro bono in that they say ‘We won’t charge you anything unless you get a costs order, and then we will only charge you so much as you are actually able to recover from the person ordered to pay costs under the costs order’.  A costs agreement which was, as a matter of substance, to that effect was found not to present a problem in LM Investment Management Limited v The Members of the LM Managed Performance Fund [2014] QSC 54.  Then in Mainieri, the Court of Appeal left open in obiter dicta  the possibility that a costs agreement in which the winning party’s liability to pay their solicitors was conditional on recovery of costs from the losing party might not work.  Subsequently, in Mourik v Von Marburg [2016] VSC 601 the Costs Judge in Victoria decided that such an agreement in fact does not work, but the correctness of that decision has subsequently been doubted in dicta of a Victorian Federal Court judge sitting in Sydney.  What a mess.  But I am not convinced that the pro bono sector should give up on obtaining judicial recognition of a costs agreement which, as a matter of substance, predicates recovery of costs on the actual recovery of costs from the other side. [Read more →]

→ No CommentsMore articles on: Costs agreements · Indemnity principle · No win no fee · Party party costs · Professional fees and disbursements

Does the Legal Services Board have the power retrospectively to excuse inadvertently practising briefly without a practising certificate?

February 24th, 2017 · No Comments

As with most years, no doubt scores of Victorian lawyers forgot to renew their practising certificates last year.  For months, in some cases, this situation was allowed by the regulators to persist without intervention.  In Victorian Bar Inc v GSL [2006] VCAT 435 the VCAT, constituted by Judge Bowman, Peter Jopling QC, and Ms F Harrison made clear that the disciplinary Tribunal expected regulators to be proactive to prevent practitioners inadvertently practising uncertificated. Eventually, at least in some cases, the regulators seem to have raised the issue with some practitioners whose sudden apparent cessation of practice at a young age seemed unlikely.

May I respectfully suggest that you go and check, now, whether you actually have a practising certificate for the current financial year.

The question now that the regulators have apparently complied imperfectly with VCAT’s guidance is what ought to happen?  Should the practitioners who are close to blameless for practising without a certificate be given a new one with retrospective effect (some were told, for example, by their office manager that the applications had been lodged before the end of the year, and were entitled to assume that their existing practising certificate had ongoing operation pending the Board getting around to dealing with the application, by virtue of a legislative provision to that effect discussed below). Or should the full consequences of the law, including disciplinary investigation, and the refunding to clients of fees for work done while uncertificated (s. 10, LPUL), be brought to bear? The latter approach has the disadvantage of causing lawyers’ professional indemnity insurer to cancel cover during the period of non-certification and the Fidelity Fund may be unavailable to clients of the lawyers in question in relation to conduct engaged in while uncertificated.

What VCAT said was:

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→ No CommentsMore articles on: Legal Profession Uniform Law · Legal Services Commissioner · Practising certificates · Professional fees and disbursements · Professional regulation · Retainers · Uniform Legal Services Council and Commissioner

2016: Not Such a Good Year (Part 5: The Election to Get Rid of the Pesky Cross-bench)

February 21st, 2017 · No Comments

Australian election Yes, it was also an election year. It was a perfectly orderly festival of democracy in which people got who they voted for with little corruption and a retreat from the two party duopoly to spice things up a bit.  I do not mean by including a report of the election to suggest that it was particularly indicative of not such a good year.

Prime Minister Turnbull figured that Australians were rejoicing so authentically in the fact that there has never been a more exciting time to be an Australian that he might as well scoop up as much of the love as was possible and convert it into power. So he called a double-dissolution election and changed how we vote in the Senate so as to make it harder for micro-parties to get elected. He told the land that what its people needed was a strong majority government, to rid itself of what he characterised as the chaos of the Rudd-Gillard-Rudd years of minority government.

The Labor party, the Greens and independents almost pulled off a 2016esque underdogs’ upset, a bit like how Pakistan came within 40 runs of achieving the greatest second innings run chase in test history at the first test at the Gabba. (Who knows what might have happened but for Steve Smith’s freak run out to take the 10th Pakistani wicket?) The Coalition’s 21 seat majority was reduced to a 1 seat majority, but Treasurer Morrison, who was so irritating on election night in his unshakeable, smug confidence that the Coalition would be returned to government in his own right was, to give him his due, right. The Prime Minister gave a miserable victory speech about which no one at all enthused.

In a double dissolution election, you only need half the votes you normally do to find yourself called to the Senate (though in this election the 3 least successful elected senators in each state will serve only three year terms). And more than a third of voters gave their first preference in the Senate to a party other than the Coalition and the Labor Party. There was accordingly a more than usually interesting haul of senators. Ironically, there are more Greens and cross-benchers than ever before. Following the election the government needed the vote of at least one senator from Pauline Hanson’s One Nation Party to pass any legislation opposed by both Labor and The Greens. That Party wants a Royal Commission into Islam, a Royal Commission into climate science, as well as the scrapping of the renewable energy target. [Read more →]

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On Freedom

February 15th, 2017 · No Comments

The Hon Robert French, until very recently the Chief Justice of Australia, gave the 2017 Law Oration about the rule of law in the Banco Court of the Supreme Court of Victoria.  You can read it or watch it here.  He cited authority for a proposition which I occasionally find a failure to grasp bedevils young lawyers’ thinking about problems.  It is that if there is not a law against it, you’re free to do it, in Australia at any rate.  You do not need a positively expressed ‘right’ to be entitled to do something (like be a bigot).  There is in fact no positively expressed right to be a bigot; rather the freedom to be a bigot, to the extent it exists, is an incident of your general freedom not having been curtailed by laws limiting that freedom.  Paradoxically, the Attorney-General would be on stronger ground in asserting the existence of his ‘right’ if his government worked some human rights, like freedom of speech, into the Constitution or even just enacted a federal charter of rights.

Of course sometimes it is nearly impossible to know whether a rule applies, and that is bad.  Incomprehensible laws undermine the rule of law, as do laws which ought never have been made and which are never used (like most of the criminal offences in the Legal Profession Act 2004). What, for example, is the meaning of r. 8 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, a piece of subordinate legislation made under the authority of the Legal Profession Uniform Law (Vic.)?  That rule, a bad rule, says: ‘A barrister must not engage in conduct which is … discreditable to a barrister’.  Equally poor a law is the prohibition on barristers engaging in conduct which is ‘prejudicial to the administration of justice’, also in r. 8.  What even is the ‘administration of justice’? That is a question I have actually had to think about, and the answer is not entirely clear.  Breach of these rules actually gets prosecuted.

Might this blog post, in which I scorn unduly broad laws made by unelected bureaucrats, which can be used lazily by prosecutors who personally don’t approve of certain conduct of their colleagues even though it does not infringe any specific norm, prejudice the administration of justice by ‘bringing the law into disrepute’ (whatever that means)?

Getting back to what should be a most elementary proposition, what the former CJ said was:

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2016: not such a good year (part 4: terror, including genocides)

February 10th, 2017 · No Comments

Nadia Murad, a former sex slave used by an old, fat and ugly Islamic fundamentalist, and survivor of the Yazidi genocide

It is said that 2016 may have been the year in which a coordinated terrorist attack involving bombs and knives reached Melbourne. St. Paul’s Cathedral, Federation Square and Flinders St, possibly on Christmas Day. 400 AFP and ASIO officers and regular police arrested seven men. Four were charged: Abdullah Chaarani, Hamza Abbas, Ahmed Mohamed, and a fourth man. Little is known. Per The Age, ‘Police said the suspects were “self-radicalised” but inspired by Islamic State.’

Tunisians pulled off a few memorable atrocities in the West. A man ran over and killed 86 people in a truck careering along the Promenade des Anglais in Nice. The divorced bisexual French father of three and alleged wife basher at the wheel was shot dead. Though Mohamed Lahouaiej-Bouhlel was Tunisian by birth, and ISIL claimed responsibility, actual links with terrorists still seem remarkably speculative. Such religiosity as he acquired was acquired very shortly prior to the attack, as in the fortnight prior. His phone suggested he loved men, women, booze and drugs. [Read more →]

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2016: not such a good year (part 3: Tromps, Trumps, Russia, China)

February 2nd, 2017 · No Comments

Victorious underdogs  With some already noted exceptions, it was the year of the underdog. In the AFL, the Western Bulldogs pulled off an extraordinary Grand Final victory, the fruits of ex-Slater & Gordon man Peter Gordon’s remaking of the club. By contrast, the Court of Arbitration for Sport confirmed the suspension for 12 months of 34 past and present Essendon players, including Jobe Watson. That club won only 3 games and wooden spooned. Watson had to hand back his Brownlow Medal.  The doping scandal was more or less over.

Then the Chicago Cubs won the oddly named World Series in American baseball, breaking a 108 year drought. In Basketball, the Cleveland Cavaliers improbably took the NBA title from the Golden State Warriors, one of the most dominant teams ever in the competition. In English football, Leicester won the premier league competition despite the bookies having them at 5000-1 at the beginning of the season, an extraordinary upset. It was described as a sporting miracle. [Read more →]

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