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Cases, cases

Update, 19 February 2008: Fellow Melbourne law blogger Legal Eagle has kindly written a case note on Equuscorp v Wilmoth Field Warne.

Update, 21 December 2007: Another two advocates’ immunity cases:

1. Symonds v Vass [2007] NSWSC 1274, 36,000 words, after nearly 3 weeks of trial. See Ysaiah Ross’s case note in his article in The Australian on 30 November 2007 titled ‘Let’s Dump Advocates’ Immunity’.

2. Mallik v McGeown [2007] NSWSC 1414.

Update, 19 December 2007: Fellow Melbourne law blogger Legal Eagle has done an excellent case note on the first case referred to below, saving me the trouble.

Original post: The Supreme Court and Court of Appeal is dropping cases on this blog like no tomorrow. I can’t keep up, so I will just bring them to your attention for the time being:

1. Re Legal Practice Act 2004; re OG, a lawyer [2007] VSC 520, in which the Court of Appeal today struck off the roll a barrister whose disclosure to the Board of Examiners about an allegation at university that he cheated on an assignment was found to be a lie. Legal Eagle provided a long note of the case here. In other news, a famous American judge, Richard Posner, wrote a book on plagiarism. He blogs too. Update: 29 January 2008: And compare this American case (In the Matter of Willie Jay White, Supreme Court of Georgia) about an applicant for admission to practice which was denied because his explanation for curious similarities between his work and another’s at law school was not believed.

2. Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280, a case about whether estoppel by convention could operate against the prima facie disentitlement in a solicitor to recover fees under a void costs agreement, and about where exactly the dividing line is between a void and a good costs agreement. It is the latest in a long saga.

3. Coadys (a firm) v Getzler [2007] VSCA 281, a case covering much the same territory as the Equuscorp Case. This case and the previous one will be very important for the interpretation of the Legal Profession Act, 2004‘s costs provisions.

4. Francis v Bunnett [2007] VSC 527, in which Justice Lasry dismissed an application for summary judgment by reference to advocates’ immunity in a classic regretted settlement case. That is, his Honour was not persuaded of the hopelessness of the client’s argument that where there has been no adjudication after a trial, there is no finality of the kind protected by the immunity which is worthy of protection. It is notable that a number of cases which have gone the other way are not mentioned in the judgment.

5. MM&R Pty Ltd v Grills [2007] VSC 528, a decision of Justice Cavenough yesterday about the availability of advocates’ immunity as a defence to a suit alleging simple delay, and where there has been no adjudicated decision of a court worthy of protection. His Honour recognised that the immunity applied in such circumstances.

It will be interesting to read the two advocates’ immunity decisions more carefully, and tease out to what extent they are consistent with one another.

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Sudden eruption of unconscionability amongst solicitors further documented

Updated, 4 January 2008: See the underlined additions below (with thanks for the references to Jason Pizer’s book at p. 246).

Original post: Now two unrepresented folk have managed to convince VCAT’s Legal Practice List’s Member Butcher in a Fair Trading Act, 1999 claim that yet another solicitor has been acting unconscionably towards his clients in relation to fees. The decision in Alexander v HWL [2007] VCAT 2297 (and two earlier decisions posted about here and here and here) suggests two separate schisms between VCAT’s decision makers:

  • The first between those who hold that solicitors engage in trade or commerce when they provide professional services to clients (such as Member Butcher) and those who hold that they do not (such as Senior Member Howell and Deputy President Steel); and
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Anyone got a bent lawyer story to top this one?

The Times reports:

‘Naveen Sagar laundered drug money, orchestrated false defences and supplied bogus witnesses to help major criminals to evade justice. He was involved directly in fraud and burglary and was suspected of trying to derail an Old Bailey murder case after police found a picture of the trial jury on his mobile phone.

Sagar flaunted the proceeds of his corruption – wearing designer suits, driving a Porsche 911 and buying a portfolio of properties – until Ahmed Osman Hersi, a Somali-born drug dealer, gave evidence against his former solicitor and other criminal associates in an attempt to earn a lighter sentence for himself.’

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Why you needn’t call a solicitor an ‘Australian legal practitioner’

Update: The nice thing about blogging compared with, say, writing a book (not that I would know) is the interactivity.  Lawyers are obviously still a bit chary of the comment function, given how many of them email me rather than comment.  Nothing prompts the sharpening of e-pencils quite like an error, and it seems I have made one, in an article, ironically, about errors of exactly the same species.  To stem the deluge of correspondents (which stands at 2) let me recognise that ‘beaks’ are not, in common parlance, lawyers, but Magistrates, and judges, possibly even tribunal members.  I am not convinced that all of the guests on 3RRR’s Lawyers Guns & Money’s impossibly amusing ‘Beak of the Week’ segment were such folk, but then again, that was a long time ago.

Original post: Often enough, I see pleadings against barristers, and against solicitors, which recite that the defendant is an Australian legal practitioner within the meaning of the Legal Profession Act, 2004. I am often unsure why. I think it would be fine to plead that the defendant is a solicitor, or a barrister. The other day, I came across a decision of Justice Byrne which considered a somewhat analogous question in a completely different context: Smith v Harris [1996] 2 VR 335. It reassures me that changes in statutory language need not necessarily affect the use in the law of ordinary language: see below. But there are moments when the language of the Act should be pleaded, and when you must, as a matter of law, call yourself an Australian legal practitioner rather than any old beak. Continue reading “Why you needn’t call a solicitor an ‘Australian legal practitioner’”

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Two Age articles about the Supreme Court

Tucked away in the business section of Saturday’s Age are two articles about the Supreme Court, and its funding difficulties. They don’t seem to be online, but here’s another article with much the same flavour: the Court needs more resources and new ideas to deal with civil trials. What follows is a stream of consciousness rant based only on anecdotal evidence, against the whole profession of litigators and reformers too timid to contemplate anything other than tinkering at the edges, rather than criticism of the Court. I am happy to acknowledge that some of the suggestions might turn out to be misconceived, but I wish I heard more discussion of this kind at the moment when there is a civil justice review on foot. Continue reading “Two Age articles about the Supreme Court”

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Mediators’ immunity questioned

Freehills’ Ken Adams taught me a lot in my first years as a solicitor. He used to delete the immunity clauses in mediation agreements before having his clients sign them. I have occasionally done likewise. Mary-Anne Noone wrote an article in the October Law Institute Journal riffing off Tapoohi v Lewenberg (No 2) (2003) VSC 410. It is titled ‘Liability Matters for Lawyer Mediators’, and its citation is (2007) 81(10) LIJ 52. Unless you are an LIV member, you won’t be able to access it, but its point is simple: that all those clauses which mediators pop into mediation agreements immunising themselves are void, if the mediator holds an Australian practising certificate and the mediation occurs in Victoria. They are void for infracting s. 7.2.11(2) of the Legal Profession Act, 2004, which says: Continue reading “Mediators’ immunity questioned”

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Disgruntled clients and the web

This year, I acted for a man who was so pissed off with a used car salesman, that he set up a webpage to recount his experiences. Say for the exercise the business was called Jack Maggs and Daughters Used Cars, and that its website was www.jackmaggs.com.au. My client purchased www.jackmaggs.com and went to town, in an indignant but truthful kind of a way. A suit for defamation followed. I pleaded the defence of truth, and particularised all the wrongdoing in detail. There it sat, on the public record, available to be inspected by the public. A confidential settlement was arrived at. The website is no longer there, but my client had by then made his point. Legal Blog Watch’s post ‘Who Needs a Lawsuit for Excess Fees When You’ve Got the Internet?‘ has alerted me to this website, which must strike terror into the hearts of many a law firm. It is apparent from the site that the firm has responded in the media, and the disgruntled client has responded with vigour on the blog, and on and on it goes.

The blogosphere is part of this whole trend. Consider the opprobrium which Reed Smith, a big international firm, has earned itself — rightly or wrongly — when it allegedly estimated its fees at US$50,000 in ‘a routine employment discrimination case’ and then charged its not-for-profit client 20 times that amount. See for example this post and this one, from Law.com and Legal Blog Watch respectively.

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“this letter will be used on the question of costs”

I came across a really bad interstate solicitor a while back. One of his peccadillos was to write, at the end of all of his letters to my instructor — his opponent — ‘We thank you for your cooperation, and if you have any queries please do not hesitate to contact us.’ The thing is we so weren’t cooperating. I just kept on objecting to the affidavits of merits put up in support of the application to set aside a default judgment until his client decided it was no longer worth the effort. His other favourite line was ‘This letter will be used on the question of costs’ to which I thought ‘Yeah, right.’ I don’t think I ever use that purported threat in correspondence. What’s the point? But it’s so commonplace a tic that I wonder whether there is in fact any good reason for it, whether it might be a hangover from the past and I’m too young to get it. So, my question: has anyone ever crashed and burned, unable to use a letter on the question of costs for want of such a sentence? Anyone want to defend the practice? (Of course, we’re not talking about Calderbank letters here. Putting ‘without prejudice save as to costs’ on a letter is useful, no doubt.)

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Getting documents out of insurers

If I recall correctly, one of my first contested hearings as a young solicitor was about whether the claim for privilege over a loss adjuster’s report in an affidavit of documents drafted by me was kosher.  I went on to write an article on the subject in that august journal, the newsletter of Women in Insurance’s Victorian chapter.  The law was all over the place.  Now Wotton & Kearney have put out a note of a substantial decision on the same issues: privilege of documents in the hands of an insurer brought into existence at a time when proceedings were merely anticipated.  The case is Southland Coal Pty Ltd (Receivers & Managers Appointed) (In Liquidation) [2006] NSWSC 899.  It is a decision which is favourable towards insurers and takes an expansive rather than restrictive approach to the question.  The article appears in the firm’s inaugural annual insurance review, but its author, Sydney senior associate Brendan Hammond has given me permission to reproduce it.

This is one of the points made:

‘some of the disputed documents were emails exchanged between officers of the insurer, or between an officer of the insurer and a third party. It was held that the issue was not whether those emails were privileged but whether granting access to them would result in disclosure of privileged communications such as the provision of legal advice by the insurer’s lawyers.’

That is consistent with Justice Chernov’s majority view of waiver in Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201, and inconsistent with Neave JA’s minority view.  Now, here’s the article in full:

Continue reading “Getting documents out of insurers”

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Latest case on privilege and inadvertent disclosure

If there is one area of the law which has always seemed to me to be all over the place (though I never really sat down and tried to nut it out), it’s the law of privilege in its application to the inadvertently disclosed document. The latest English decision is MMI Research Ltd v Cellxion Ltd and others [2007] All ER (D) 142. It says that there will be a waiver unless the recipient ought to have known that a mistake had been made. In this case that could not be made out. CMS Cameron McKenna’s Law Now note on the case is here.

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Judge says finality has overtaken intimate connection as immunity touchstone

A New South Wales District Court judge has handed down an important decision on advocates’ immunity, which is under appeal. The case is Fowler v La Fontaine [2007] NSWDC 207. It is a case which explores what the test for the immunity really is now that the High Court has said ‘it’s all about finality’. The decision on appeal will be important especially in those cases where there is no adjudicated outcome after a contested hearing, such as where there is a discontinuance, or a default judgment, or a striking out consequent upon terms of settlement. The facts, and the relevant bit of the judgment, are set out below. Continue reading “Judge says finality has overtaken intimate connection as immunity touchstone”

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Two new cases from NSW

Here’s a 37,000 word long judgment in a professional negligence case against a solicitor which began in early 2000: Rebenta Pty Ltd v Wise [2007] NSWSC 1332. It does not discuss many issues of law. The reason one might want to look at it is that it is one of those rare cases where a dispute about whether there was one ongoing retainer or several more discrete retainers of a solicitor. The solicitor won after a four and a half week trial.

In The Prothonotary of the Supreme Court of New South Wales v. Sukkar [2007] NSWCA 341, the NSW Court of Appeal engaged in a surprising degree of soul searching before deciding to strike an ecstasy importer cum solicitor off the roll of practitioners. The fact that he gave false evidence in his trial did not assist him. The decision is an interesting illustration of the distinction between a finding of want of good fame and character and a finding of professional misconduct where the conduct in question is unconnected with legal practice. The Court of Appeal’s decision in the criminal appeal is reported at Regina v Sukkar [2005] NSWCCA 54. The importation of 124 kilograms of ecstasy earnt the solicitor 14 years in jail. In relation to the appropriateness of a finding of misconduct where the conduct in question is unconnected with legal practice, Basten J said in separate reasons from the majority: Continue reading “Two new cases from NSW”

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More on insurers’ liability to pay claimaints’ costs personally

I posted on this subject earlier here. My friend and former long-time colleague at Middletons, Derek Begg commented, and has referred me to this article on Plymouth & South West Co-Operative Society Ltd v Architecture Structure & Management Ltd [2006] All ER (D) 248 by insurance firm Wotton & Kearney. (Some serious grunt went into their inaugural annual insurance review — which is definitely worth checking out.)