Regent Leisuretime Limited v Skerrett [2006] EWCA 1184 is a lovely reliance on counsel case. You can read a precis here.
Unrepresented woman ordered to pay costs of statute barred case
Wells’s Case [2006] VCAT 2370 (Senior Member Howell, 16 November 2006)
Mrs Wells’s case, also the subject of the previous post, was struck out under s. 75 of the VCAT Act, 1998 for having been brought out of time. Mr Howell found that the case was “lacking in substance” because it was statute barred and ordered her to pay the Legal Practitioner’s costs despite accepting that she genuinely believed that she could bring the claim more than 6 years afer the allegedly negligent omissions, which some might say was not a particularly severe misconception if she was suing in negligence, where the first occurrence of some damage marks the accrual of the cause of action, rather than the date of the allegedly negligent act or omission. Sections 75(1) & (2) of the VCAT Act, 1998 provide: Continue reading “Unrepresented woman ordered to pay costs of statute barred case”
Res judicata: VCAT strikes out case previously decided by Legal Profession Tribunal
Wells’s Case [2006] VCAT 2370 (Senior Member Howell, 16 November 2006)
I have always thought I was the only person in the world who held the view that an unsuccessful claimant in the Legal Profession Tribunal was not allowed, despite s. 133(2) of the Legal Practice Act, 1996 to have a second go in the courts, even though a successful claimant was allowed to do so. I probably wasn’t, since that’s what Senior Member Howell (formerly the Tribunal’s Registrar) decided in VCAT the other day, and he has probably always thought the same way. Continue reading “Res judicata: VCAT strikes out case previously decided by Legal Profession Tribunal”
The barrister and the trust monies saga ends in 6 month holiday
Update: 14 October 2007 The Court of Appeal refused leave to appeal, and the High Court refused special leave to appeal too, on 5 October 2007.
In Victorian Bar Inc v DAP, [2006] VCAT 2293 Judge Bowman, Tony Southall QC and T Harper suspended the barrister’s practising certificate for 6 months and ordered him to pay costs. He had been found guilty of misconduct constituted by breach of a prohibition in the Legal Practice Act, 1996 on barristers receiving trust monies (otherwise than through their clerks) (s. 178). Breach of the provision was also amenable of being prosecuted as a crime, punishable by up to 2 years’ imprisonment. That that was so was considered to be a measure of the seriousness with which Parliament viewed the offence. Continue reading “The barrister and the trust monies saga ends in 6 month holiday”
The administration of justice ground for restraining solicitors from acting summarised
In Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404, the facts and outcome of which are described in the previous post, Justice Young went to some lengths to summarise the law on the third basis articulated by Brooking JA in Spincode for restraining solicitors from acting. The relevant parts of the decision are reproduced below. Continue reading “The administration of justice ground for restraining solicitors from acting summarised”
Federal Court reiterates administration of justice as a ground for restraining solictiors from acting
Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404Justice Neil Young, who has just resigned after less than a year in the job as a Federal Court judge in order to return to the bar, took the exceptional step of restraining a solictor from continuing to act in order to protect the administration of justice in circumstances where the solicitor had acted for one joint venturer in relation to a meeting of the joint venture company which resolved to commence proceedings against the other joint venturer. That meeting had been controversial because it was held in the absence of the joint venturer the meeting resolved to sue, and the solicitor was likely to have to give evidence about it. There was the added problem that even if the company had properly resolved to commence the proceedings, the running of the proceedings would be frustrated by a deadlocked board. This post summarises the facts in a simplified form, and the outcome. The next post reproduces some of Justice Young’s discussion of the law.
Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution
In B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA), the majority criticised the Chairman of the Full Legal Profession Tribunal for retorting to the solicitor’s submission that “These proceedings are a full time occupation for me” with “Occupation or obsession, Mr [G]?”. They said it was taken, with some justification, as a term of abuse. But they found that, and some other comments, raised no case of apparent bias such that the Chairman should have excused himself. But the majority said at [62] that: Continue reading “Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution”
Procedural fairness: “Murray letters” considered by Victorian Court of Appeal
B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)
The Law Institute corresponded with the solicitors in this matter between 1998 and October 2000. The CEO Ian Dunn, wrote what is known in the game as “a Murray letter” on 16 October 2000. That is a letter summarising the tentative conclusions of an investigation giving a practitioner a final opportunity to comment before a final decision to lay a charge. The two solicitors in this case were given 7 days in which to respond. One of them replied at length and indicated he did not desire an extension of time, the other did not request an extension. Later, their lawyers took the point that the charge was invalid and the Tribunal’s jurisdiction not properly invoked. The Tribunal found it had jurisdiction. The Court of Appeal had no jurisdiction to entertain an appeal in relation to this aspect of the Tribunal’s decision because, it found, the finding that sufficient time had been afforded was a question of fact, and it had jurisdiction only to hear appeals on a question of law. Nevertheless, the majority ventured some dicta. Continue reading “Procedural fairness: “Murray letters” considered by Victorian Court of Appeal”
The great delegation debacle: B (A solicitor) v Victorian Lawyers RPA Ltd
B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)
The Law Institute of Victoria Limited used to be named Victorian Lawyers RPA Ltd. It, and the Victorian Bar, were the only two RPAs (Recognised Professional Associations) set up under the Legal Practice Act, 1996, which allowed for an unlimited number of RPAs. Under s. 313 of that Act, it was entitled to delegate in writing powers and functions to employees. If it did not do so, its board (styled “the Council”) would have had to make every decision.
The Law Institute charged two solicitors with misconduct. Six months later, it sought leave to withdrew the charges, on the basis that its “failure to follow strict process” had resulted in the charge laid being a nullity. The Tribunal allowed the Law Institute to do so, refused to dismiss the charges, and refused to order costs.
The Law Institute’s Council minuted a recommendation that its powers under s. 151, the provision requiring the RPA to take certain courses at the end of a disciplinary investigation, and giving it certain discretions, be delegated to its CEO, Ian Dunn. At the end of the minutes, the word “confirmed” was typed, and they were signed by the Chair.
Pursuant to s. 151, Dunn signed new charges against the same solicitors, purportedly as delegate of the Law Institute. The Court of Appeal found that the Legal Profession Tribunal had erred in finding it had jurisdiction. It found that a written minute of an oral recommendation to delegate a power was not a written instrument of delegation. Because the person who signed the charge had no authority to do so, the Tribunal’s jurisdiction was not properly invoked, and it had no jurisdiction. The Court of Appeal ordered the charges dismissed.
For the peak lawyers’ body in the State practising under the business name “Professional Standards” it was an embarrassing lapse which threw the world of professional discipline into chaos for months (Ormiston JA observed at [3] that he found it “surprising that a body made up of qualified and experienced lawyers should take a course as was here adopted without there having been some explicit authority which would justify their actions”.) Because the procedural defect did not apply only to the particular delegation in question, huge numbers of decisions stood amenable of being set aside, or ignored (since an order made by a statutory Tribunal without jurisdiction need not be obeyed). Urgent retrospective legislation had to be rushed through parliament.
The architects of this most exquisitely technical of victories were Terry O’Conner and barristers he retained, Rod Garrett QC and Bob Miller.
Continue reading “The great delegation debacle: B (A solicitor) v Victorian Lawyers RPA Ltd”
Bowman J suggests no power in Legal Profession Tribunal to reopen hearing
In K v Legal Services Board [2006] VCAT 2303 (see previous post) Bowman J was critical of, and did not follow Law Institute of Victoria Limited v Michel (T0211 of 2004), a decision of the Full Legal Profession Tribunal chaired by Judge Dee to grant a rehearing after having made a final order, on the basis that the solicitor had not received proper notice of the hearing. Judge Bowman suggested that the Full Tribunal was functus officio and in the absence of a statutory power to reopen the hearing, had no power to do so, having done its job and exhausted its jurisdiction in the process.
It is somewhat ironic that he was immediately asked to reopen his decision, decided that in order to do so, he would need to consider whether he was in fact permitted to do so by reference to the principle of functus officio, but then gave his decision in the reopened matter, explaining that it was unnecessary to determine whether he in fact had power to do so, since he was not inclined to change his decision.
This justification for doing so is not particularly attractive. Perhaps another analysis might have been that there is no res judicata in a finding that a tribunal has no jurisdiction, and though it might often be an abuse of process for a second application to be made in the face of such a ruling, the changed circumstance which occasioned him to reopen his decision (the Court of Appeal’s new decision in He v A & Co) was enough not to make what might have been treated as a second application an abuse of process.
“VCAT may make orders of a transitional nature” read down
K v Legal Services Board [2006] VCAT 2303; K v Legal Services Board No. 2 [2006] VCAT 2362 (Bowman J)
A solicitor lied to a County Court judge about holding a practising certificate and was told in 2001 by the Full Legal Profession Tribunal not to bother applying for a practising certificate until 2011 and only if he had complied with two previous orders of the Tribunal. It ordered the solicitor to be referred to the Supreme Court with a recommendation that his name be struck off the roll of practitioners. The Law Institute duly applied to the Supreme Court declined to strike him off, finding that inadequate notice of the Tribunal hearing had been given to the solicitor. The solicitor did not then appeal the Full Tribunal’s order. Three and a half years later, the solicitor applied under s. 2.4.9 of the Legal Profession Act, 2004 for a practising certificate, by which time the Legal Practice Act, 1996 had been repealed and the Legal Profession Tribunal abolished. He said the Supreme Court had ruled that the Full Legal Profession Tribunal’s decision had been defective, and as the successor to that Tribunal, VCAT must be able to “remedy” the Full Legal Profession Tribunal’s defective decision. Bowman disagreed, suggesting that the only remedy available to the solicitor might be to use “the provisions of the Interpretation of Legislation Act, 1984 in relation to repealed legislation” to bring an appeal under the now-repealed Legal Practice Act, 1996 (as to which, see below). Continue reading ““VCAT may make orders of a transitional nature” read down”
Sole practitioner gets 3.5 years’ jail for $1M trust deficiency
In R v. Gabriel W [2006] VSC 397, a solicitor pleaded guilty to 13 crimes: 9 thefts, 3 counts of obtaining financial advantage by deception, and one trust account deficiency. He received more than $1 million in trust moneys from clients and gambled it away and appears to have been sentenced on the trust account charge to 2 years’ jail. In total, the solicitor was jailed for just short of 6 years, with a non-parole period just short of three and a half years. Continue reading “Sole practitioner gets 3.5 years’ jail for $1M trust deficiency”
Mr Howell releases Client from implied undertaking as to documents
Alessi’s Case is a long-running application to set aside a costs agreement commenced in the Legal Profession Tribunal in 2003. The Alessis succeeded in having their solicitor’s costs agreement cancelled and two bills set aside in [2005] VLPT 18. The latest decision — [2006] VCAT 149 is just a little one about an application by the Clients to be released from what used to be known as the Home Office v Harman undertaking, that is, the undertaking by a litigant or other person who has received information through a process of compulsion such as discovery not to use the documents for any purpose other than the prosecution of the matter in which the information is produced.
The solicitor had discovered over 1,000 documents. There were related court proceedings in which the solicitor was suing the Alessis for his fees, in which a company associated with the solicitor was suing on a loan to a company associated with the Alessis, and in which various consultants engaged by the solicitor were suing the Alessis for fees. The Alessis applied for a waiver of the implied undertaking en masse on the basis of their general relevance to one or more of the 6 related proceedings. That application was granted. Continue reading “Mr Howell releases Client from implied undertaking as to documents”
Law Institute Journal tallies the score on Spincode
I have never understood what it is about Justice Brooking’s extended obiter on the fiduciary duty of loyalty in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 which prompted such apoplexy. I would have thought that the second most obvious conflict of duties (after acting concurrently for two opposing parties) would be to swap sides in the one dispute. I think it is in fact this: people hear “duty of loyalty” and think “I can’t act against anyone I’ve ever acted for? No way!” But the only content of the duty of loyalty is not to “take up the cudgels against a former client in the same or a closely related matter”. What’s not to like about such a proposition? Nevertheless, it is a substantial departure from the House of Lords’s position and finds little favour in NSW. Continue reading “Law Institute Journal tallies the score on Spincode”
Just another failed regretted settlement case
In Wellington’s Case [2006] VCAT 2209, Mr Wellington’s teacher status as a tae kwon do expert apparently did not bear him in good stead when he was assaulted at his workplace. He thought his employer was to blame. He retained one of the big labor law firms to represent him in a challenge to Workcover’s refusal to pay him compensation. The man’s allegations were that the reason things had unravelled for him in cross-examination was that he had not been prepared properly for giving evidence, that incompetent counsel had been retained, and that his case had “not been properly prepared”. He had been “forced to settle” on a walk away basis on day 3 of his trial.
As in Stipanov v Mier, a young solicitor’s diligent file note taking did her firm proud, and she won every contest of evidence. Mr Wellington’s claim was tossed aside with the slightest ceremony, Mr Howell’s reasons for decision running to only 1,400 words. The clear implication of the decision is that Mr Wellington’s untruths were exposed by the solicitor’s contemporaneous written records.
Had the advocates’ immunity been claimed by the firm, they would no doubt have won on that basis by reference to Biggar v McLeod, but it was their prerogative to fight the case on the merits.
Nick Klooger was Counsel Assisting the Tribunal. Patrick Over was for the solicitor.
Unconscionability in the Fair Trading Act 1999 explored
By reference to the conclusion that certain costs disclosure conduct was “unconscionable”, Mr Butcher knocked 7.5% off a solicitor’s fees: see the two previous posts about Wilkins’s Case [2006] VCAT 2199. What follows is a consideration of the concept of unconscionability in the Fair Trading Act, 1999, its application to this case, and a criticism of the finding of unconscionability by reference exclusively to non-compliance with the costs disclosure regime under a repealed act when the consequences of that non-compliance were specified by the parliament and which were not triggered in this case. Continue reading “Unconscionability in the Fair Trading Act 1999 explored”
Fees reduced for unconscionability where Legal Practice Act costs provisions did not apply
In Wilkins’s Case [2006] VCAT 2199, Mr Butcher was faced with an application under the Fair Trading Act, 1999 by a client who sought to avoid payment of two accounts in circumstances described in the previous post. The application was brought under the Fair Trading Act, 1999, though which provisions is not clear from the very brief reasons. The reasons are especially brief considering this is the first time to my knowledge that unconscionability provisions have been relied on to diminish legal fees payable by a solicitor because of a costs disclosure default. The solicitor sent a letter to the prospective client which set out the solicitor’s hourly rate but did not give an estimate of total fees. Mr Butcher found at [17]:
“The document … does not comply with s 86 of the Legal Practice Act 1996, which applied at the time. This dispute is not brought under that Act and the situation is that in relation to a dispute under that Act, I am empowered to reduce bills of costs where there has been a failure to comply with s 86 having regard to the seriousness of the failure to provide information. However, this dispute is brought under the Fair Trading Act 1999. I do, however, consider that an examination of whether the appropriate regulatory regime has been complied with is appropriate in deciding whether under the Fair Trading Act 1999 a determination should be made in favour of the applicant. There should have been more extensive advice given by [the solicitor] in relation to legal fees. It was practicable to do so . The failure to give this advice is unsonscionable.”
He knocked about 7.5% off the bill, rounding it down from $3,874 down to $3,000. The justification for this course is explained in the next post.
Mr Butcher finds fees payable where solicitor retained but instructed to do nothing
In Wilkins’s Case [2006] VCAT 2199, an unrepresented solicitor appeared in VCAT against an unrepresented former client in a dispute about costs instituted by the former client under the Fair Trading Act, 1999. The solicitor did some work for a beneficiary of a deceased estate. Then the beneficiary said he instructed the solicitor to do nothing, without terminating the solicitor’s instructions. The other beneficiaries and the estate were doing things, however, and the beneficiary had expressed his desire to challenge the estate. He complained when he received two bills for about $3,500. Mr Butcher found that in truth the solicitor had had a watching brief, and accepted the solicitor’s submission that he was “damaned if he does and damned if he didn’t” in that to do nothing would “be laid open to a charge, possibly of a disciplinary nature and potentially a dispute by a client saying that his failure to take action gave rise to liability for the client’s loss” (though it is hard to see how a solicitor could possibly get into trouble for following explicit instructions so long as he had properly explained the risks). Mr Butcher found:
“Given that vital correspondence can be sent to a legal practitioner under those circumstsances, he is under a duty to seek the client’s instructions concerning that material and in doing so to advise the client of the significance of that material. It is clear that this has been the situation in this matter.”