Recently, the County Court’s Practice Court accepted that where a client admitted having received a bill given by email, service in accordance with the Legal Practice Act, 1996 had been effected, so that various deadlines which are counted from that date then commenced to run.  That is so even though the commencement of the running of time was predicated on a bill having been ‘given in accordance with’ a service regime which was very specific and did not include service by email.  This post considers the law in that regard, the only authority on the point being consistent with the Practice Court’s decision.  It also notes the deemed service provisions in the 1996 and 2004 Acts, and their interpretation. [Read more →]

What follows are links to the Acts which regulate lawyers in each state and territory, ordered by date of principal commencement, commencement details, and, where available, links to the predecessor Act.  South Australia is yet to catch up with the rest of Australia, stuck with its Legal Practitioners Act, 1981.  Everyone else has Acts in force entitled Legal Profession Act based on national template legislation, all of which no less luminous a luminary than Kevin Rudd has labelled an ‘unwieldy monster’.

Consistently with my policy of burdening you with talk only of changes rather than of proposals for change, I have spared you until today the news that the national legislation debacle has been elevated from SCAG (Standing Committee of Attornies General) to COAG (the Council of  Australian Governments). And that Attorney General McClelland’s people are already drafting the minimalist national lawyer regulation which all the States will have to adopt exactly, else the Commonwealth will grab their lawyer regulation powers altogether.  Imagine the transitional provision delights which await practitioners and their unwitting clients! My advice to the strongmen in the Department for Crushing Centralism: don’t allow for any continued operation of the old Acts after the commencement (all provisions in all states on the same easy to remember date) of the new Acts.  The modern Acts are:

Legal Profession Act, 2004 (NSW) which commenced on 1 October 2005
Legal Profession Act, 2004 (Vic) most of which commenced on 12 December 2005
Legal Profession Act, 2006 (ACT) most of which commenced on 1 July 2006
Legal Profession Act, 2006 (NT) most of which commenced on 31 March 2007
Legal Profession Act, 2007 (Qld) most of which commenced on 1 July 2007
Legal Profession Act, 2007 (Tas) which commenced on 9 April 2008
Legal Profession Act, 2008 (WA) most of which commenced on 1 February 2009

Only Victoria’s adopts its unique crazy numbering system.  More detail below, alphabetically this time, and Victoria excluded on account of that’s a whole other post waiting for me to finish it (I started it the summer before last). [Read more →]

The relatively new Supreme Court judge Justice Davies has provided a useful overview on the law in Victoria on the construction of arbitration clauses in 1144 Nepean Highway Pty Ltd v Leigh Mardon Australasia Pty Ltd [2009] VSC 226.  Her Honour found the clause meant what it said, and stayed the proceeding which had been instituted in contravention of it. Here is her Honour’s summary of the law: [Read more →]

Robin Tampoe, the former Gold Coast lawyer hired as one of Schapelle Corby’s lawyers by Ron Bakir, has been struck off the roll of solicitors by Queensland’s Legal Practice Tribunal. The decision is here.  Removal from the roll is the ultimate sanction in the world of professional discipline, though in circumstances where it is not apparent that Mr Tampoe intended in the future to practise law anyway, it is interesting that there does not seem to have been any push for a substantial fine.

Mr Tampoe did not contest the charge of professional misconduct comprised of disclosing on a national breakfast television show confidential information obtained during his retainer about criminal convictions of members of the Corby Family.  Nor did he contest the unsatisfactory conduct comprised of commentating on his own defence strategies and calling his client’s family the biggest pile of trash he had ever come across in his life. That conduct was characterised as ’scandalous, offensive and/or likely to bring the profession into disrepute’.  You can still watch some of the conduct in question on Channel 9’s website. [Read more →]

Under s. 95 the Legal Practice Act, 1996, interest was chargeable on bills of costs from the period from 30 days after payment is demanded until the bill is paid.  But what does it mean?  Does interest start to run 3o days after (i) the date of the bill, (ii) the day it was posted, (iii) the day it was received, (iv) the day at the end of the period which the costs agreement says payment is to be made within, or (v) the due date for payment stated on the bill?  In this post, I hazard an answer, and note the different provision now to be found in the Legal Profession Act, 2004, following its amendment which I posted about here. [Read more →]

The Supreme Court of NSW recently delivered a giant decision about a solicitor’s costs agreement and a fight over the right to possession of the solicitor’s file.  Acting Justice Debelle’s reasons in PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456 exceed 33,333 words.  Ultimately, his Honour found there was no costs agreements, with the result that legal costs, though still payable, were payable only on a quantum meruit basis at common law.  Though what those fees amounted to on a quantum meruit basis was unascertained, no bills having been given on that basis, it was still enough to support the solicitor’s assertion of a lien for unpaid costs as justification for refusing to deliver up the file.  I have not read the decision, but though an argument that there was a retrospecive costs agreement failed, it seems to have failed on the facts rather than on any legal difficulty with the concept of a retrospective costs agreement.

In the latest Byrne v Marles ([2009] VSC 210), Justice Beach seems to have found that any particular allegation made by a complainant may properly be characterised as both a civil and a disciplinary complaint.  If the Legal Services Commissioner receives a complaint, she must investigate it to the extent it is a disciplinary complaint and must try to settle it to the extent it is a civil complaint.  There is no particular difficulty where two allegations are found in one complaint document, and one is characterised as a civil complaint and another is characterised as a disciplinary complaint.  In my experience, that is what the Commissioner always does: she chooses between the two alternatives in relation to any one allegation as if they are mutually exclusive.

Since ‘any genuine dispute’ between the complainant and the lawyer complained about is a civil complaint, however, one might think that all disciplinary complaints in which the complainant has a dispute with the lawyer complained about will amount to both a civil and a disciplinary complaint.  And since an allegation will be a disciplinary complaint if it is of conduct which ‘falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent’ lawyer, there will be many civil complaints which will also be disciplinary complaints.

In such a circumstance, unless the Commissioner summarily dismisses the whole complaint under s. 4.2.10, she must try to settle it (insofar as it is a civil complaint), and (insofar as it is a disciplinary complaint) she must investigate it.

If Justice Beach’s logic is applied, profound challenges await the Commissioner.  They are inherent in the Act’s injunction in relation to one dispute to investigate it in the public interest with a view to prosecuting and penalising the lawyer, while at the same time trying to resolve the dispute between the complainant and the lawyer.  Most obviously, what is the Commissioner to do about s. 4.3.5(4)? It says:

‘Evidence of anything said or done in the course of attempting to resolve a civil dispute is not admissible in proceedings before [VCAT] or any other proceedings relating to the subject-matter of the dispute.’

Are there to be two sets of responses, in one of which (in the civil complaint) the lawyer makes socially appropriate concessions, apologises, and agrees to pay money in return for confidentiality, and in the other of which (the disciplinary complaint), the lawyer takes all appropriate technical points and, while being fully frank and open as required by the Act, concedes nothing? And imagine the disquiet the lawyer’s insurer will have knowing that the Commissioner will be able to compel the provision of answers from a practitioner, as if interrogating him, in the disciplinary complaint which will run parallel with the professional negligence claim constituting the civil complaint. [Read more →]

I commend Quis Custodiet Ipsos Custodes’s post on what the law demands when giving evidence of conversations.  Contrary to a common heterodoxy, the witness who cannot recall the precise words can give evidence of the effect of the conversation.  The New South Welsh are the most excited about direct speech, especially in affidavits.  Personally, I detest the constant repetition of ‘words to the effect of …’.  Better, I think, to say ‘He told me that he knew nothing about the knife’ than ‘He said words to the effect of “I know nothing about the knife”‘.

The rule in Home Office v Harman governs the use of documents and information obtained by people generally by various forms of compulsion in litigation: the court rules about interrogatories (a form of statute), Court orders for discovery, witness statements served pursuant to an order to do so.  But when I carefully checked this point a while ago, it seemed clear that the principle had no application outside litigation, the exception being, perhaps, arbitration.

Outside litigation, however, the main source of powers to compel the production of documents and the disclosure of information is statute, and the main repository of them mandarins.  When a mandarin (disguised say as a Commissioner, or an Inspector) obtains information by compulsion, there is an important limit on what the mandarin may do with it.  The important limit is that the information may only be used for the purpose the power of compulsion was bestowed.  This is a proposition which I vaguely knew I had read somewhere, but which has several times eluded me when I tried to look it up.  But now it’s back in my quiver, courtesy of Apache Northwest Pty Ltd v Agostini [2009] FCA 534.  The relevant High Court authority is Johns v Australian Securities Commission (1993) 178 CLR 384; [1993] HCA 56, which is posted about separately here.

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This is a little adjunct to my post ‘Restraints on Use of Information Obtained by Compulsion’, a place to store away for future reference the little case note of Johns v Australian Securities Commission (1993) 178 CLR 384; [1993] HCA 56 penned by Justice McKerracher in Apache Northwest Pty Ltd v Agostini [2009] FCA 534.  In digesting the quotation from Johns, it is helpful to know what s. 25 of the Australian Securities Commission Act, 1989 said.  Here is Justice McKerracher’s case note:

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