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Tariff up for not responding to demand for information by Bureau de Spank

In Legal Services Commissioner v MG [2007] VCAT 1491, the lawyer failed to respond to letters demanding a written response to a complaint by another lawyer. The Commissioner wrote on 18 January 2007, 16 February 2007, 23 March 2007 and 1 April 2007. In other words, a complaint, quite possibly lodged last year, has languished uninvestigated for 8 months. The lawyer proffered no explanation for his breaches of the Act, so that Member Butcher decided, quite appropriately, that this persistent silence by the lawyer amounted to professional misconduct rather than unsatisfactory professional conduct. Though the dichotomy between wilful and innocent breaches of the Act which used to distinguish unsatisfactory conduct from misconduct under the old Act has been dispensed with, Mr Butcher still found those concepts of assistance in deciding whether this was the lesser or the more serious of the two conduct offences.

The fine was $1,500 and the costs $2,500. In the period to the end of the financial year before the one just gone, the going tariff seemed to be $500 and $1,000 in costs, as I noted in an earlier post.

MG gets the prize for first misconduct ‘conviction’ under the Legal Profession Act, 2004 (so far as I know), but not the first ‘conviction’; another solicitor was convicted of unsatisfactory conduct on a similar charge a week or two ago.

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Federal Court Dishes Out Some Serious Proportionate Liability Interpretation

Melbourne’s Justice Middleton has dished out some serious interpretation of the Victorian and federal proportionate liability regimes and, what’s even more useful, their interrelationship, in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216, a decision at an early stage of the proceedings. It is a classy judgment in a matter right up Justice Middleton’s alley; before going to the bench, his Honour led a team of lawyers in Victoria’s biggest pure economic loss case.

The only relevant ratio decidendi is that Part IVAA of the Wrongs Act, 1958 (Victoria’s proportionate liability regime) cannot apply to causes of action under federal statutes which evince an intention not to allow apportionment. It is not that the Commonwealth statute prevails by operation of s. 109 of the Constitution over the state statute, the Commonwealth statute covering the field. Rather, the reason is that state Acts do not apply in courts exercising federal jurisdiction (such as the Federal Court in this case) unless s. 79 of the Judiciary Act, 1903 (Cth.) applies, and it only applies unless a Commonwealth Act otherwise provides. Drawing on the High Court case which said there can be no defence of contributory negligence against a claim for misleading or deceptive conduct under s. 52 of the Trade Practices Act, 1974, his Honour concluded that the relevant parts of the ASIC Act, 2001 and the Corporations Act, 2001 did ‘otherwise provide’.

Interesting dicta about the Victorian proportionate liability regime (relevant provisions here) includes:

  • there is a question whether only state statutes are intended to be referred to in the definition of apportionable claim in the Wrongs Act, 1958, which says ‘a claim for economic loss … in an action for damages (whether in tort, in contract, under statute or otherwise) arising out of a failure to take reasonable care’ (at [27]);
  • ‘The provisions do not require that the claim itself be a claim in negligence or for a breach of duty — it [sic.] only requires that the claim arise from a failure to take reasonable care’ (at [29]);
  • a defendant seeking to apportion blame against a concurrent wrongdoer must plead out the basis for asserting that the concurrent wrongdoer is liable to the plaintiff (at [31]);
  • each concurrent wrongdoer must have a legal liability to the plaintiff (at [40]);
  • preliminary discovery might be had under the Federal Court correlate of Order 32.05 of the Supreme Court Rules against a person to ascertain whether they are a concurrent wrongdoer against whom apportionment might be claimed (at [42]). Continue reading “Federal Court Dishes Out Some Serious Proportionate Liability Interpretation”
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Justice Hollingworth unpicks the proportionate liability provisions

In Woods v De Gabriele [2007] VSC 177, Justice Hollingworth has tentatively unpicked some difficult parts of the federal and Victorian proportionate liability provisions in Part IVAA of the Wrongs Act, 1958 (the relevant provisions are here), and in the Corporations Act, 2001 (Cth) and Australian Securities and Investments Act, 2001 (Cth) Division 2, Subdivision GA. Her Honour held that the rule requiring leave of the Court before commencing proceedings against insolvent companies was no barrier to joining an insolvent concurrent wrongdoer under the Wrongs Act, 1958, and suggested the possibility that:

  • if a claim is apportionable (for example because it could have been pleaded as a common and garden variety misleading or deceptive conduct claim under the Fair Trading Act, 1999), it may remain apportionable even if the plaintiff pursues some other cause of action in an attempt to avoid the proportionate liability regime;
  • in the case of alternative causes of action pleaded in support of a claim for compensation for the same loss and damage, some apportionable and some not, all of the claims ought to be bundled up for the purposes of apportionment of that loss and damage, and treated as one apportionable claim; and
  • it is appropriate, on a defendant’s application, to join an alleged concurrent wrongdoer as a defendant rather than a third party even if the plaintiff opposes the joinder. Continue reading “Justice Hollingworth unpicks the proportionate liability provisions”
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Solicitors’ settlement advice immune from suit

I know for a fact that the profession does not understand the extent of the advocates’ immunity which is set out in the decision of the majority in D’Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1. Not uncommonly I see lawyers’ negligence claims arising out of litigation being defended without claiming the immunity, or wasting costs by failing to claim it at the outset. In Jezovita v AGL [2007] VCAT 1447, VCAT’s Senior Member Howell, undoubtedly the most experienced examiner of immunity defences in the world, has delivered a pithy judgment which reiterates two matters in a clear way, and states clearly something which is relatively newly brought out into the open, though it has been lurking around quietly if you looked hard enough. The two matters reiterated are:

  • in relation to out-of-court litigation work, solicitors are as entitled to the immunity as barristers, regardless of whether they are appearing as advocates or engaging in the solicitor’s traditional role; and
  • advice as to settlement of litigation, as well as failures to advise in relation to settlement issues, may not be sued on because of the immunity: Biggar v McLeod [1978] 2 NZLR 9; Kelley v Corston [1997] 4 All ER 466.

In this matter, both solicitors and barrister were entitled to summary disposition of Mr Jezovita’s claim against them that they pressured him into the settlement, should have realised he did not understand the terms of settlement, that they negotiated negligently and did not get a satisfactory result, and that they should have advised him to run his case. In other words, just another failed regretted settlement case.

The relatively new matter clearly expressed in this judgment is that adding an allegation of undue influence into the plaintiff’s case will not assist, because the equitable doctrine of undue influence either founds a defence to a claim based on a transaction said to have been induced by undue influence of the counterparty or founds a claim to set aside a disposition said to have been brought about by the exercise of undue influence on the part of the counterparty to the disposition, but does not lead to an entitlement to damages: D’Orta-Ekenaike v Victoria Legal Aid (per Buchanan JA in the reasons for decision of the Court of Appeal’s refusal to grant leave to appeal from Judge Wodak’s decision at first instance, approved by Justice Callinan on appeal at (2005) 223 CLR 1 at 121).

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Home Office v Harman: some law about its application to VCAT

This is a workmanlike little post, designed simply to trap into the world of this blog for when I need them next in court the legal principles discussed in Acting President Bowman’s decision in ZGW v Legal Services Board [2007] VCAT 1406, casenoted in the previous post. The parties’ arguments are also reproduced below in part. Continue reading “Home Office v Harman: some law about its application to VCAT”

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The obligation not to use documents obtained under compulsion except for the purpose compelled

Update, 21 August 2007: Latest case on the implied undertaking:  Street v Hearne [2007] NSWCA 113.

When a person comes into possession of documents through legal compulsion, they are under an implied obligation not to use them for any purpose but the purpose for which the compulsion operates. Most lawyers know the rule insofar as it applies to discovered documents. But it applies to all manner of compulsion and to information as well as documents, including subpoenaed documents, and documents obtained by the Legal Services Commissioner under s. 4.4.11 (in relation to disciplinary complaints) (or, now, in relation to civil disputes, s. 4.3.5(3)) of the Legal Profession Act, 2004. It is best known as the rule in Home Office v Harman after the House of Lords decision in that case reported at [1983] 1 AC 280.

The latest decision in the saga of Australia’s best-known female criminal lawyer, ZGW v Legal Services Board [2007] VCAT 1406 (see for background my earlier posts here and here and here) is a ruling on an application by the Legal Services Board to be released from the obligation. It is another of Acting President Bowman’s long, honest, and thorough judgments. His Honour is a hard-working judge, and I like the way he sets out with fidelity the parties’ arguments, and then deals with them one by one. It is a diligent, and intellectually honest approach, and goes beyond what could be, and often is, gotten away with in some administrative tribunals. More generally, VCAT is to be commended for having the courage to publish each and every new written decision on the internet.

The case was argued by some heavy-hitters: Joe Santamaria QC for the Board and Gerry Nash QC for the solicitor. Mr Nash prevailed. The tussle was over a police file on the solicitor, and: Continue reading “The obligation not to use documents obtained under compulsion except for the purpose compelled”

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Solicitors’ liability paper; conflicts of lawyers acting for insurer and insured

Here’s a link to a little article on the law relating to the possible conflicts of duties faced by a lawyer retained by a liability insurer to act for its insured in the defence of proceedings against the insured. It discusses 3 English cases:

  • Brown v Guardian Royal Exchange Assurance;
  • TSB Bank v Robert Irvin; and
  • Zurich Professional v Karim.

And here’s a link to an excellent solicitors’ liability publication from Barlow Lyde & Gilbert. It deals with the new professional conduct rules in England, solicitors’ liability for mortgage fraud, lawyers’ obligations to their opponents, and an unusual case in which liability insurers were ordered by the Court to pay £1 million in legal costs of a failed defence even though the limit of indemnity had been exhausted by the judgment. That was ordered on the basis of these apparently unremarkable circumstances:

‘(i) the insurers determined that the claim would be fought; (ii) the insurers funded the defence of the claim; (iii) the insurers had effective conduct of the claim; (iv) the insurers fought the claim exclusively to defend their own interests; and (v) the defence failed in its entirety.’

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Freshfields partner gets whacked $140,000 over conflict of duties to concurrent clients

Freshfields used to be Marks & Spencer’s go-to lawyers. Then they fell out of favour a bit. But they were still acting for Marks ‘n’ Sparks on one relatively small contract. A key partner then decided to accept instructions to act for a consortium trying to take over the supermarket chain. If the takeover went hostile, that one contract was likely to be contentious. There was a potential conflict of duties, the Court found in Marks and Spencer Group Plc v Freshfields Bruckhaus Deringer [2004] EWCA Civ 741, and restrained the firm from acting. Three years later, the wheels of justice have ground on, and the disciplinary sequelae of the injunction application have come to a head. Barry O’Brien copped a £5,000 fine from the Solicitors Disciplinary Tribunal, and a £4,000 fine for bringing the profession into disrepute. He pleaded, and ‘volunteered’ to pay prosecution costs of £50,000 which suggests that he had a good long think before pleading. Continue reading “Freshfields partner gets whacked $140,000 over conflict of duties to concurrent clients”

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The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act

In Ralph Cosentino v MY [2007] VCAT 1319, Member Butcher continued a tradition of statutory interpretation of a little technical provision about when service of statutory notices is effective. That tradition, of the Legal Profession Tribunal and its predecessors, has always troubled me. Though it does not seem to have been cited by counsel,  a recent decision of a Deputy President of VCAT took the opposite approach: Vitesnik v Macedon Ranges SC [2007] VCAT 598. There is a Legal Profession Act, 2004 notice issued by the Legal Services Commissioner within 60 days of receiving which an applicant must start their VCAT case.  Mr Butcher concluded that he would have found that Mr Cosentino did not ‘receive’ it on the day when the Act directed that it was to be ‘taken to have been given to him’. But the question never quite arose, as Mr Butcher used a VCAT Act, 1998 power to excuse the applicant’s use of the wrong originating process and concluded that the proper characterisation of things was that the application, though defective, had been made within time anyway, so that it was appropriate to excuse the procedural defect and recognise the case as having been started within time. Warning: this is a particularly boring decision unless you are a user of VCAT’s Legal Practice List. Continue reading “The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act”

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Victoria Marles to speak on progress towards national profession

The Legal Services Commissioner, Victoria Marles, is to speak at the Australian Legal Practice Management Association’s conference in Melbourne on 26 October 2007. I feel for her, with the 4 p.m. Friday shift. With her NSW counterpart Steve Mark, she will speak on what is left to do in creating a truly national profession. Imagine trying to fit all that in on a Friday afternoon, just before cocktails. The conference brochure provides the following profile of the Commissioner: Continue reading “Victoria Marles to speak on progress towards national profession”

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President Maxwell: legal reformer

President Maxwell spoke at Jason Pizer’s book launch the other night. There is no nonsense about him, and no hubris. I liked the way he sorted out Mr He’s case, one which was sufficiently memorable for him to make reference to it in passing in his speech. The President is at pains to cast the Court as a practical and fast court, correcting injustices but not interfering with first instance decision makers for a want of i dotting and t crossing. He does not aspire to a Court writing finely appeal-proofed legal treatises for the delectation of other courts of appeal. Indeed, he is advocating ex tempore judgment giving wherever possible. The President’s speech on the New Court may be found here, the latest practice note on civil appeals here.

The President sees written advocacy as very much on the rise in the Court of Appeal, a way of getting through more hearings more quickly and reducing what he properly regards as the inexcusable delays which have sometimes characterised the Court of Appeal in the past. President Maxwell actually said that justice delayed is justice denied, an admission rarely heard in the formal, public part of our grindingly slow superior court system, but one which practitioners and their clients feel keenly, all the time.

I kind of knew all this, but I was only vaguely aware of the passion with which the President is trying to clean up the archaic and uncertain bits of the law of procedure. Continue reading “President Maxwell: legal reformer”