There are a few out there. Most prominent is Peter Faris QC, one of the irrascible characters of the Victorian Bar about whom I have posted before. He rails against Islamic fundamentalism and what he perceives as the West’s wimpish response, and puts up hoops for civil liberties loving folk like me to jump their arguments through. Technology law blogs traditionally dominated the Australian legal blogosphere by number, early adoptiveness, and quality. Weatherall’s Law (now see Law Font), Barry Eager’s Bazpat, and the indefatiguable Peter Black’s Freedom to Differ, are just some examples. Melbourne barrister Warwick Rothnie is the Melbourne member of that class. He writes IPWar. In other stuff, Liz Harris, a costs lawyer, writes Allocatur. Then there’s the eclectic anonymous Melbourne mother, academic, artist, PhD student, and lawyer who writes The Legal Soapbox. Finally, there’s Peter A. Clarke, of the Melbourne Bar. Over in Cambridge, is a one-time Melbourne boy writing Courting Disaster. I’m sure there are more. Who are they? (I’m talking about Melbourne lawyers blogging at least in part about legal issues.)
Summary dismissal in a solicitors’ negligence claim at VCAT
Skinner’s Case [2007] VCAT 917, a claim against a leading labour law firm, was for some reason heard in VCAT’s Civil List. A more likely list would have been the Legal Practice List, given that it was a professional negligence claim, albeit one pleaded under the Fair Trading Act, 1999 and the Trade Practices Act, 1974. But Mr Skinner, a self-represented litigant with an enthusiasm for internet research and a copy of Pizer’s Annotated VCAT Act under his arm, came up against the Acting President, Judge Bowman, who turfed his $400,000+ claim out as doomed to fail and as an abuse of process. Yet another failed regretted settlement claim bites the dust. The only pity is that this proceeding was allowed to wallow for 2 years, while repeated directions of the Tribunal requiring witness statements and an intelligible statement of claims against the solicitors were ignored. The solicitors did not claim advocates’ immunity in respect of the suit, despite the availability of such a plea: Biggar v McLeod [1978] 2 NZLR 9; O’Connor-Sraj v Lawrence [2005] VCC 1093. Continue reading “Summary dismissal in a solicitors’ negligence claim at VCAT”
Updates: big words, Texan legal writing, conflicts of duties
In my post “Judge uses big word”, I commented on President Mason’s use of “tergiversation”. Now David Starkoff at Inchoate has noted another’s analysis of the odds of each of the High Court judges other than Justice Kirby being responsible for the appearance of “epexegetical” (which seems to mean “explanatory in a way supplementary to the principal or original explanation”) in a decision on migration. (10/1 odds: Justice Gummow.) Love how the judiciary tends to save up these little diamonds of language for those least likely to have the resources to look them up.
And, by way of update to my post “Finally, some scholarship on Australian lawyers’ conflict of duties”, here is a long article on conflicts of duties in America, “I’m All Verklempt!” by Kendall M. Gray et. al., including a long analysis of the Yanks’ position on Chinese walls. The relationship between establishing a conflict of duties and the entitlement to compensation of one of the people to whom the conflicting duties is owed is a bit complicated in Australia. It certainly does not follow that every breach of fiduciary duty gives rise to a right to money in the victim from the lawyer. But in Texas, there is a principle of fee forfeiture which applies in cases of clear and serious breaches of fiduciary duty, a remedy born in Burrow v. Arce 997 S.W.2d 229 (Tex. 1999). Where an attorney was found to have grossly overcharged, fee forfeiture was imposed so that the attorney lost all his fees rather than just those which exceeded a reasonable fee: In re Allied Physicians Group, P.A., No. 397-31267-BJH-11, Civ. A.3:04-CV-0765-G, 2004 WL 2965001, at *5 (N.D. Tex. Dec. 15, 2004) (unpublished), aff’d, 166 F. App’x 745 (5th Cir. 2006).
Mr Gray’s style cannot be described as stuffy, and exemplifies what is good about Texas, namely plain talking: Continue reading “Updates: big words, Texan legal writing, conflicts of duties”
Unbettered Calderbank offer gives rise to no presumption of solicitor-client costs
Stipanov v GCFM [2006] VSC 258, in which a professional negligence claim against a solicitor failed on causation, was posted on here. The costs decision, Stipanov v GCFM (No. 2) [2006] VSC 424 has only recently come to my attention. Despite the complete failure of the plaintiff’s claim and an early substantial offer from the defendant which had gone unaccepted, the defendant was awarded costs only on a party and party basis. I think it is a curious decision for two reasons.
First, the Supreme Court interpreted the rules relating to rules of court offers of compromise as not applying to the case where a plaintiff loses altogether as opposed to the case where the plaintiff wins but gets less than what was offered, and reasoned according to the principles applicable to Calderbank offers of compromise. Calderbank offers are those not made under the procedure specifically provided by the rules of court, but made by a letter headed “Without prejudice save as to costs”. (The Court held, in this regard, that there is ‘no rule, predisposition, presumption or guideline to the effect that a failure to obtain a judgment more favourable than a rejected Calderbank offer will, in the absence of persuasion to the contrary, lead to a special costs order.’ That proposition would come as a shock to most solicitors, but it comes from a thorough decision of Justice Redlich in Richfield Investments Pty Ltd v Oversea–Chinese Banking Corporation Ltd [2004] VSC 351.)
Second, despite having canned the reliability of the plaintiff and the honesty of her solicitor husband in the principal judgment, the Court decided that it was not unreasonable for the plaintiff to have rejected a substantial offer made early in the proceedings for the following reason: Continue reading “Unbettered Calderbank offer gives rise to no presumption of solicitor-client costs”
Supreme Court judge doesn’t say a word in court for 15 months
The only black judge of the United States Supreme Court, Justice Clarence Thomas is said by Wikipedia to be second most likely to vote in favour of free speech in cases before the Court. Yet his advocacy of free speech does not extend to enthusiasm for personal exercise of the right; he has not asked a question of counsel in court for 15 months.
Some commentators suggest he is not an enthusiast of oral argument. Orality is a much bigger feature of Australian and English courtrooms than American, but it is on the way out, slowly. Several were the times in the Bar Readers’ Course I will complete on Thursday that we were told that a written submission is appropriate to every hearing in every court, a proposition which if taken literally stretches my credibility at least, but is probably not as far from the mark as many people might think.
The American version of the Briginshaw standard of proof
In a stinging dissent against the conclusion of a majority of the Supreme Court of Washington that a lawyer had breached a conflict of duties rule in representing multiple parties, one judge set out what sounds a lot like the US version of the Briginshaw standard of proof which prevails in Australian and English disciplinary hearings, at least in relation to serious allegations of wrongdoing. The case is In re Discipline of Marshall. Hat tip to Legal Profession Blog for bringing the case to my attention. The majority judgment is here. The dissenting opinion is here. It said: Continue reading “The American version of the Briginshaw standard of proof”
Sentencing the thieving beak
The Judicial College of Victoria has created a beautiful publication with the assistance of the judges of the land. It is the Victorian Sentencing Manual, freely available to the public, a kind of restatement of the law of sentencing reminiscent of the very useful restatements of the laws produced in America. I hope their next project will be the Laws of Estoppel Manual, but somehow I doubt the generosity of the State will extend that far. There are, however, other useful things on the same website, notably the Victorian Criminal Charge Book (used by judges in charging juries) and the Search Warrants Manual (the chapter on search warrants under the Legal Profession Act, 2004 is coming soon…). Since professional discipline is a quasi-criminal jurisdiction, practitioners in the field will no doubt find the Manual of assistance, especially if appearing before a tribunal presided over by a judge experienced in the criminal law. Have a look, by way of example, at the section on sentencing those who steal whilst in positions of trust, such as solicitors, at section 25.3.1.4 (the site allows neither a direct hyperlink to that section, nor the copying of text).
Judge Bowman explains Murray’s Case
VCAT’s Acting President Judge Bowman today handed down a long and important decision in relation to the relationship between alleged failures to follow the procedures for investigating complaints against professionals laid down by legislation and the jurisdiction of the disciplinary tribunal to hear charges laid as a result of such investigations. After eight months’ thought, his Honour decided that VCAT did have jurisdiction in the matter of Law Institute of Victoria Ltd v IAB [2007] VCAT 808, and that anything which could have been done better by the Law Institute were not productive of such unfairness as to invalidate the charge laid in the tribunal. In the course of doing so, he provided this summary of the leading case on point, Murray v Legal Services Commissioner (1999) 46 NSWR 224:
Public reprimand for intemperate written submissions
A Delaware attorney has been publicly reprimanded for intemperate written submissions. The judgment goes through the American superior court law on where the boundary between zealous advocacy and impermissibly intemperate attack lies. Great minds differed; the Supreme Court overturned a decision of the Board of Professional Responsibility which found that the language did not warrant discipline. The impugned words were: Continue reading “Public reprimand for intemperate written submissions”
Doctor blogs medical negligence case against him
11 June 2007 Update: the blog was his undoing. Under the moniker “Flea”, an American doctor is blogging the medical negligence case against him. He explains the results of his google searches on the plaintiff’s angular-faced and humourless attorney, and this:
‘Flea spent most of the day in his attorney’s office. A well-known jury preparation expert had been brought into town to teach Flea how to be examined by a hostile plaintiff’s attorney.’
WA Supreme Court says advocates’ immunity applies to misleading and deceptive conduct claims against lawyers
In Alpine Holdings Ltd v Feinauer[2007] WASC 58, the Supreme Court of Western Australia gave very short shrift indeed to an argument that a statutory claim of misleading and deceptive conduct was not met by advocates’ immunity. The decision is interesting for this reason alone. It is also interesting because of:
- the Court’s willingness to throw aside the ever so clever form of the pleading and look at what was really being alleged as a matter of substance;
- the appropriately expansive post-D’Orta-Ekenaike’s Case‘s analysis of the intimately connected test so as to apply to alleged omissions of heads of damage and failures to pursue claims; and
- the willingness to apply the immunity to post-trial conduct (i.e. appeal and appeal preparation). Continue reading “WA Supreme Court says advocates’ immunity applies to misleading and deceptive conduct claims against lawyers”
The new contract law: a Fair Trading Act claim against Kennard’s Self-Storage
In Kimitsis v Kennards Self Storage [2007] VCAT 668, a man put some things into a Kennard’s self-storage facility. He paid the licence fees for a while, but then fell into arrears, and was uncontactable for two months from the time he put the things into the stroage unit. A written warning went unheeded, but there was a bit of a mix-up with the post. Kennard’s forcibly entered the storage unit and sold the stored things, as it was entitled to do under the contract. But it did so unbeknownst to the man, at what he considered to be an obscene undervalue. The contract said Kennard’s did not take possession of the goods and was not a bailee of them. It did not have a key to the storage unit, and did not know what was inside. Neither warehousemen’s legislation — which required sale of the goods at public auction — nor the law of bailment was accordingly found to apply. Kennard’s was found to have breached an implied contractual duty to sell the goods as well as possible. The result was that Kennard’s was ordered to pay damages. It just so happened that those damages were precisely equivalent to the arrears of licence fees owed by the man. Continue reading “The new contract law: a Fair Trading Act claim against Kennard’s Self-Storage”
VCAT’s Civil List engenders “a sea of misunderstanding”
Coggin’s Case [2007] VCAT 266 is an illustration that the merger of the former Legal Profession Tribunal with VCAT is still being worked out. Senior Member Howell described what had been engendered as ‘a sea of misunderstanding’. Unless you are interested in the procedures of VCAT’s Legal Practice List, you will find this post very boring. Continue reading “VCAT’s Civil List engenders “a sea of misunderstanding””