They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now going to apply in relation to any particular communication.  If the Tax Man, or the Legal Services Commissioner, compels you to produce documents, the common law will apply.  If you produce them, the common law will determine whether the production amounts to a waiver.  If the investigation leads to court (but not VCAT) proceedings proceedings, to which the new law will apply, you might be compelled by subpoena to produce documents you successfully resisted producing in the investigation pursuant to the common law.  Furthermore, in those proceedings, the Court will decide for itself, under the new law, whether the production to the Commissioner in the investigation amounted to a waiver or not.

The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments.  Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial.  But there are differences too: Justice Byrne’s decision referred to below confirms it.

I blogged about the transitional provisions for the new legislation here.  It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act.  There is a presumption in statutory interpretation against the retrospective taking away of accrued rights.  But there is no such presumption in relation to changing procedures for the vindication of rights.

Someone has actually already run this esoteric argument.  In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta: [Read more →]

In Legal Services Commissioner v R-MB [2010] VCAT 182, Senior Member Howell found a repeat offender had failed to comply with a demand from the Legal Services Commissioner for a written explanation of conduct the subject of a complaint.  The Bureau de Spank argued that the infraction should be regarded as professional misconduct rather than unsatisfactory professional conduct, as contended for by the practitioner.  One of the reasons put forward was that the solicitor had previously been found guilty of the same thing.  The Bureau suggested there were authorities in support of this proposition, but did not identify them.  Neither party appears to have brought to Senior Member Howell’s attention an authority decided by another member sitting in VCAT’s Legal Practice List this year which suggested ‘prior offences’, or their absence was irrelevant in the determination of exactly this question.  On that occasion, VCAT said:

‘15    I have had some difficulty deciding whether the conduct of the applicant is unsatisfactory professional conduct or professional misconduct. Part of the difficulty has been whether I should take into account the fact that the respondent has had no previous determinations made against him of a disciplinary nature. In my view, that is something that should be taken into account on the matter of penalty but it should not be taken into account as a matter of what charge for which he should be found guilty.

16    I compare this to the hearing of a criminal matter, although it is a disciplinary matter and something entirely different, but the similarity is that a criminal court would not look at prior convictions until it had decided what breach or what act had been committed. In this particular instance, it is appropriate that I should not look at past conduct until I have decided what act has been committed, ie whether it is unsatisfactory professional conduct or professional misconduct.’

Now it’s my turn not to identify the authority, but only because I was in it, and I don’t blog my own cases.

‘Quis custodiet ipsos custodes?’, a Melbourne lawyer’s criminal law blog,  explained the criminal law rule against duplicity here.  I am not much interested in it from a professional discipline point of view, and it seems the courts tend not to get over-excited about it either (though the lawyer made some progress with it in Law Society of NSW v Shalovsky [2008] NSWADT 14).  In the course of my readings about other things, I came across the Court of Appeal’s discussion of the principle as applied in a professional discipline prosecution of a lawyer in Woods v The Legal Ombudsman [2004] VSCA 247. Despite the numbering below, the first paragraph is in fact [39]:

1. The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law.[11] It seems plain enough that the basis for the rule is fairness to the defendant in the sense of his or her being informed, at the very outset, what is the specific offence which is being alleged and, if it is established, to have certainty of what charge he or she has been found guilty. Thus, as Evatt, J. explained in Johnson v. Miller[12]: [Read more →]

Here is a link to Uganda’s Anti-Homosexuality Bill, 2009. It is proposed that:

• men who have sex with other men ’serially’ are to ’suffer death’;
• it would be a crime to rent a house to a gay;
• a woman who touches another woman with a view to seducing her will suffer life imprisonment; and
• speech in favour of homosexuality will attract a sentence of imprisonment for seven years.

There are obviously some seriously sick puppies at work in the Ugandan government.  Mind you, it seems as though it’s principally the brainchild of a born again Christian MP. It’s a pity, because Uganda was once a pretty cool African nation, before and after Idi Amin.   Now it’s the kind of place where torture is widespread, opposition leaders get arrested, their show trials get stormed by heavily armed government thugs, and 20,000 children have been abducted to work as child soldiers and slaves, forcing many of the rest in the North to leave their villages every evening to sleep in the forest, churches or schools — the ‘night commuters‘ fleeing the Lord’s Resistance Army.  More information  on the bill here.

According to the Victorian Bar, the Supreme Court’s Justice Ross has been appointed President of VCAT. That does not mean he is no longer a Supreme Court judge; he will be both.  Justice Morris, two Presidents ago, used to hear cases in both jurisdictions. It did not occur to me when his Honour leapt from VCAT to the Supreme Court recently (see my post at the time) that this might be in the wind; Justice Kevin Bell was appointed President only in March 2008, but it seems that was always a 2 year term.  It will be interesting to see whether Justice Ross will see much business in the Legal Practice List, to which he is accustomed.

I did a plagiarism case before the Board of Examiners last year, and looked up the cases then.  My colleague Patrick Over also reviewed them for his prosecution on behalf of the Legal Services Commissioner of the plagiarist solicitor in Legal Services Commissioner v WJK [2010] VCAT 108, and cleverly found a case from the old Solicitors’ Board which my researches did not pick up.  Senior Member Howell (who was the Solicitors’ Board, back in the day) helpfully digested the authorities (there is also, of course, Re OG [2007] VSC 520, noted by me here): [Read more →]

In Legal Services Commissioner v WJK [2010] VCAT 108, a sole practitioner who has written a legal text and published a number of articles succumbed to temptation when the pressures of life got to him and meant he did not have time to do a proper job of writing a 10,000 word research paper for his Master of Health and Medical Law at Melbourne Uni.  He plagiarised extensively from two published articles which he did not acknowledge at all. I can tell you, I presently have the greatest of sympathy for full-time lawyers who have to squeeze Masters study into their lives.  But I must confess to a degree of incomprehension as to why the solicitor, having gotten away with the plagiarism and garnered a good mark, thought publishing the plagiarism in the Journal of Law and Medicine was a good idea.

He made admissions at an early stage after he was caught out, but persisted to the end of the misconduct hearing with mitigatory evidence which was rejected as implausible.  He pleaded guilty to two counts of professional misconduct at common law which specifically alleged that his plagiarism was deliberate.  His practising certificate was cancelled and he will not be getting a new one within 6 months of the cancellation taking effect.

On 3 March 2010 in Parramatta, Steve Mark, NSW’s Legal Services Commissioner is giving a talk on ‘Walking the Ethical Tightrope:  Balancing the Responsibilities of In-House Counsel to Key Stakeholders’.  If you would prefer to read the speech on your Ipad in the bath, click here. He would do well to include a grab from series 2 of ‘Damages‘, the brilliant HBO legal drama starring Glenn Close, Rose Byrne, and — as Claire Maddox, corporate counsel of a murderous and polluting energy company –  Marcia Gay Harden. I am quite ignorant about Mr Mark, but from what I can tell about the NSW Legal Services Commission, it seems to do some innovative and good things. His speeches are collected at this page. He has some other hats too which make him sound like a decent kind of bloke: [Read more →]

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 is a case about the construction of partly written and partly oral contracts, and the application of the parol evidence rule to them.  Justice of Appeal Campbell summarised the cases in one of those beautifully crafted little numbered lists that this little newspaper regards fondly.  Truly, these little numbered lists of principles supported by authority are a labour of love and they are worth sharing.  His Honour said:

(1) When there is a document that on its face appears to be a complete contract, that provides an evidentiary basis for inferring that the document contains the whole of the express contractual terms that bind the parties: Gillespie Brothers & Co v Cheney, Eggar & Co [1896] 2 QB 59 at 62 per Lord Russell of Killowen CJ; Gordon v Macgregor [1909] HCA 26; (1909) 8 CLR 316 at 319-20 per Griffith CJ (with whom O’Connor J agreed), at 322-3 per Isaacs J; Hoyt’s Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133 at 143-4 per Isaacs J (with whom Rich J agreed); Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89; (1953) 89 CLR 507 at 517 per Dixon CJ, Fullagar and Taylor JJ; State Rail Authority (NSW) v Health Outdoor Pty Ltd (1986) 7 NSWLR 170 at 191G-2C per McHugh JA (with whom Kirby P at 172G-3C and Glass JA at 180G agreed on this point); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 (FC) at 505-6 [280]- [281], 509 [293] per Allsop J (with whom Drummond and Mansfield JJ agreed); Jessop v McInteer [2003] QCA 170 (FC) at [53] per Muir J (with whom Fryberg J agreed). [Read more →]

Update, 8 March 2010: See also Pancarci v CVK & Co [1998] VLPT 10, a decision of Registrar Howell.  Judge Jane Campton appeared, and referred Mr Howell to a decision of Justice O’Bryan in Carroll v Young (delivered 16 January 1990 in Supreme Court proceedings numbered OR 108/89), which came to the same conclusion in relation to solicitors’ reliance on the ‘evidenced in writing’ requirement for costs agreements. Registrar Howell followed Justice O’Bryan’s decision, as well as a previous decision of his own which he did not name, in which he had followed In re a Solicitor [1956] 1 QB 155 on the same point.

Update, 23 February 2010: Sydney Morning Herald article here.

Original post: Najem v Maatouk [2010] NSWSC 20 is a great read.  It is a text book example of how not to sue for fees. It also progresses the resolution of the question on which two justices of appeal had previously divided, the third helpfully not deciding, in a previous decision.  The question is whether a solicitor may use the rule that oral costs agreements are void against a client relying on a costs agreement favourable to the client.  No, said Justice McCallum.  The decision also provides an insight into what does and does not amount to ‘evidenced in writing’, the minimum condition for enforceability of costs agreements. [Read more →]