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Winner gets indemnity costs but recovers less when loser proves winner’s costs agreement with his solicitors void

Casey v Quabba [2006] QCA 187

As reported in Lawyers Weekly, the Queensland Court of Appeal said the trial judge should have allowed the unsuccessful party in litigation to call for and challenge the validity of the successful party’s costs agreement with his solicitor in a party-party taxation of costs on an indemnity basis. Further, the judges found the successful party’s costs agreement was void for failure to specify the minimum requirements fora costs agreement, and ordered the costs to be taxed on the basis that there was no valid costs agreement (presumably by reference to the court scale). Don’t get too excited though; the case turned in part on the facts that (i) the taxing officer was directed by the rules of court to have regard, in indemnity costs taxations, to the costs agreement of the successful party, and (ii) the purpose of the Queensland provision was not only to benefit the client party to the agreement, but also to protect third parties affected, such as those against whom costs orders are made.

But I do wonder whether any thought was given by the successful party and the solicitors hastily putting together a valid agreement with retrospective operation. I can see no reason why it should not work.

Continue reading “Winner gets indemnity costs but recovers less when loser proves winner’s costs agreement with his solicitors void”

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Disciplinary tribunal can’t find misconduct by commission of crime

Legal Practitioners Conduct Board v Ardalich [2005] SASC 278

A solicitor suffered from what used to be known as “manic depression“. He had been charged with criminal offences of forgery but not convicted on mental grounds. The South Australian Legal Practitioners Disciplinary Tribunal heard charges that the solicitor was guilty of misconduct in having committed different crimes which had never been prosected. The Full Court of the Supreme Court of South Australia held that the Tribunal had over-reached itself in purporting to make findings about the commissions of crimes by the solicitor, but said that acts (admitted by the solicitor) that would be criminal unless met by the defence of insanity were enough to warrant a finding of unprofessional conduct, the purpose of which was not the punishment of the solicitor but the protection of society. So the Full Court struck him off the roll of practitioners. (See also the previous post).

Continue reading “Disciplinary tribunal can’t find misconduct by commission of crime”

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Insanity not a defence to professional discipline proceedings

Legal Practitioners Conduct Board v Ardalich [2005] SASC 278

The solicitor referred to in the next post could not escape a finding of unprofessional conduct because of his mental state, even though the species of unprofessional conduct alleged against him was the commission of serious criminal offences to which insanity was a defence. The South Australian Court of Appeal explained: Continue reading “Insanity not a defence to professional discipline proceedings”

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Proposed amendments to the Legal Profession Act, 2004 (Vic.)

Here is the bill proposing the second round of amendments to the Legal Profession Act, 2004 (Vic.), the Justice Legislation (Further Amendment) Bill, 2006 (Vic.). There are substantial changes to practising certificates and costs disclosure requirements on which I will report when I have digested them.
And the second draft of the National Model Provisions has been released by the Law Council (if you follow the link you need to scroll to the bottom of the page). I got a bit worried when I heard that there was going to be a renumbering of the Acts, but apparently everyone else is going to follow Victoria’s numbering so I will continue to beaver away at understanding the complexity occasioned by the simplification process.

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No issue waiver of 2nd solicitor’s advice on regretted settlement made necessary by 1st solicitor’s negligent advice

Banjo (NT) Pty Ltd v Ward Keller Pty Ltd [2006] NTCA 1

A tenant alleged its solicitors gave it bad advice on its obligations under a lease which led to it losing the chance to renew the lease. It said it got a new lease, but in order to do so, had to settle disadvantageously a claim for damages for breach of the lessor’s duties to repair. By the time of that negotiation it had taken the advice of its new solicitors. But for the disadvantageous negotiating position it had been put in, it said, it would have pursued the claim for damages for the lessor’s breach and would have won. In the suit against the first solicitors for compensation for loss of the opportunity to sue for damages for that breach, the NT Court of Appeal said it did not have to show them the second set of solicitors’ advice it had received in settling the claim; there was no implied waiver of the legal professional privilege which prima facie enured in the lawyer-client communications. Continue reading “No issue waiver of 2nd solicitor’s advice on regretted settlement made necessary by 1st solicitor’s negligent advice”

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Western Australia’s Bleak House Case is a Prosecutorial Flop

Legal Practitioners Complaints Committee v B&M [2005] WASAT 217

No doubt Dickens’s Bleak House is being dusted off in many a household glued of a Sunday evening to the BBC’s new dramatisation which finished in Australia yesterday. In it, lawyers squabble over a disputed estate in the courts of Chancery in the matter of Jarndyce v Jarndyce for generations until a new copy of the will is found which determines all issues, just as the estate is reduced to nothing by lawyers’ fees.  Life imitates art a little bit in this case of an estate whose administration took almost 50 years because of the transposition in the will of the Christian and middle names of a beneficiary — except that the respondent lawyers did not suffer any penalty for tardiness, and certainly did not take a bullet through the heart like Tulkinghorn. The last 15 years of the estate’s administration gave rise to disciplinary charges which seem to have been based on the curious proposition that if partners ignorant about the mysterious world of probate law had been involved, the former partner’s stroke of genius in working out what had happened would have come about a lot sooner. I say curious because the employee solicitor and former partner seems to have been acknowledged by everyone as having had a very long experience of almost exclusively complex probate work. Continue reading “Western Australia’s Bleak House Case is a Prosecutorial Flop”

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WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad

Legal Practitioners’ Complaints Committee v SJB [2006] WASAT 201

It is a serious crime in Western Australia to advertise in a way calculated to cause a person make a personal injury claim. A solicitor ran ads headed “Injured in a road accident and made a claim? If so, read on. [footnote: If you have not made a claim, disregard this advertisement.]” A narrow construction of the provision was adopted, consistent with the seriousness of the offence it created, and no breach was found. But not enough was done to explain “No compensation = No legal fees” and the misleading nature of those words amounted to unprofessional conduct as a falling short of the standard of conduct observed and approved by members of the profession of good repute and competence. Continue reading “WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad”

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Woman bankrupted because of solicitor’s failure to attend court suffered no loss

Mitchell’s Case [2005] VLPT 1

A client’s claim for compensation in a pecuniary loss dispute failed because she adduced no evidence that had she not been declared bankrupt by reason of her solicitor’s negligent failure to turn up to court, she could have avoided bankruptcy on any better basis than she did by paying out the full amount owing to creditors. She was criticised for not applying to set the bankruptcy aside before suing the solicitor. The decision is a shining example of the capacity of causation defences to succeed even in the face of plain negligence. Continue reading “Woman bankrupted because of solicitor’s failure to attend court suffered no loss”

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On the perils of the undersupervised law clerk

Legal Practitioners Complaints Committee and JCB [2005] WASAT 213

A sole practitoner dictated many precedent letters for his routine suburban personal injuries practice. His law clerk of 16 years’ experience, an arts graduate and a one-time law student, did all the work in a workers compensation file: she took instructions, signed letters taken from the precedent bank, negotiated with the counterparty, and was charged out at $240 per hour plus GST and $30 per short letter, $50 per one-page letter and $70 per long letter. The solicitor was unable convincingly to establish that he had done anything very much at all.

He was found guilty of “neglect” in failing properly to supervise the clerk and of “unprofessional conduct” in grossly overcharging. The first finding gave rise to a reprimand, the second to a $2,000 fine. Costs claimed at $10,000 were allowed at only $5,000 on the basis that the solicitor successfully resisted a third charge of constructively misrepresenting that the law clerk was a solicitor and on the basis that the retention of senior counsel by the prosecuting Committee was unnecessary. The third charge failed because no evidence was sought to be adduced of the solicitor’s complicity in the alleged deception, a timely reminder of an oft-forgotten principle that there is no disciplinary version of vicarious liability (a different concept from the wrong of failure to supervise). The law as to the supervision of clerks is well summarised in a neat and detailed judgment of Justice Barker, a Supreme Court Judge.

Continue reading “On the perils of the undersupervised law clerk”

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Multiple claims and the $15,000 limit on power

Tweed on behalf of National Exchange Pty Ltd v Griffin Law Firm [2006] VCAT 1305

A solicitor was retained to pursue parties for breaches of contract involving small sums. He fell into dispute with the client in relation to fees in 376 such matters. Mr Howell found there were 376 separate disputes each for less than the jurisdictional limit so that he had jurisdiction, and refused an application for dismissal under the power to dismiss disputes which would be more appropriately heard by a court. Continue reading “Multiple claims and the $15,000 limit on power”

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Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy

Kaiser v Faulkner [2006] VCAT 1302

What this case illustrates is simply that upon bankruptcy the right to seek compensation or the waiver or diminution of legal costs through the dispute process under the Legal Practice Act, 1996 vests in the trustee in bankruptcy and never revests in the bankrupt even if not taken up by the trustee. Continue reading “Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy”

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Epic battle re trust monies results in misconduct finding against barrister

Victorian Bar Inc v DAP No. 6 [2006] VCAT 1226

A barrister banked $50,000 into his personal account, arguing that it was a “retainer” and not monies held on account of future fees. VCAT found that it could not have been a retainer because that is a modest fee paid to a barrister to prevent them from acting against the payer, and the barrister already could not act against the complainant at the time of the payment because of his close involvement as his counsel over many years prior to the payment. The difference between “wilful” and “reckless” breach of the Legal Practice Act, 1996 or rules of conduct was explained. The interlocutory decisions in this matter were digested earlier. Continue reading “Epic battle re trust monies results in misconduct finding against barrister”

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No estimate of fees at outset results in 15% being knocked off

Ieremia’s Case [2006] VCAT 1419

A solicitor signed his client up to a no-win no-fee costs agreement on County Court Scale C in relation to a weekly payments dispute with Workcover. The weekly payments were reinstated as a result of the solicitor’s work, though Workcover did not permit him to attend the conciliation at which that result was achieved. He did provide written submissions in advance of the conciliation, however. Because he failed to provide any estimate of fees at all, Mr Howell knocked 15% of his bill for about $1,400 for disbursements includes $1800 for professional fees and ordered the client to pay the discounted amount. Continue reading “No estimate of fees at outset results in 15% being knocked off”

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Solicitor uses VCAT’s civil jurisdiction successfully to sue for fees

Property and Business Commercial Lawyers v Dean [2006] VCAT 1492

The work of VCAT’s Legal Practice List extends beyond the work formerly carried out by the Legal Profession Tribunal, as evidenced by this decision of Senior Member Howell upholding a solicitor’s suit for fees against his former client. The solicitor quoted $650 for a conveyace and 1.5 hours’ work at $250 per hour in relation to the documentation of a loan. The course of the retainer changed and it was common ground more was involved than originally anticipated. A bill was delivered for $1,792, double the estimate. The failure to give an updated estimate under s. 89 of the Legal Practice Act, 1996 was of no consequence to the solicitor’s suit for fees: it had effect only on the taxation of a bill of costs or in a costs dispute: s. 91. This was neither; it was a simple civil suit for fees brought by the solicitor in VCAT under the Fair Trading Act, 1999 (Vic.). Mr Howell indicated that had s. 91 had application he would have knocked 10% off the bill. He ordered the client to pay the bill and awarded interest on it. Continue reading “Solicitor uses VCAT’s civil jurisdiction successfully to sue for fees”

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Queensland Legal Services Commissioner

The Office of the Queensland Legal Services Commissioner has, like VCAT, set up a searchable full-text database of disciplinary decisions in Queensland. A Queensland case on gross overcharging, resulting in a 12 month holiday for the solicitor caught my eye: Council of the Queensland Law Society Inc v Roche [2003] QCA 469. It is full of expressions like “inexcusable rapacity”. One of the charges was 12 minutes for wrapping a box of chocolates.