So long as you don’t intentionally fail to turn up when briefed, no problem

Senior Member Howell’s decision in Crawford v Kennedy [2008] VCAT 5 begins:

‘Mr. Gilbert Crawford was a defendant in proceedings to be heard in the Magistrates’ Court on 29 March 2006. He was impressed by [the late] Mr. Peter [H] QC when he saw Mr. [H] on a television programme. Mr. Crawford went to see Mr. [H] and engaged him to appear on his behalf at the hearing in the Magistrates’ Court.’

A Melbourne solicitor, presumably giving evidence on oath, was described as ‘not an impressive witness’ who was ‘determined not to give an answer unfavourable to Mr. H,’ which she presumably won’t be too happy about. Interestingly, she is quoted in this article in The Australian as saying that her one-time boss, tax lawyer Michael Brereton was using Mr H almost full-time before Mr H died. Mr Brereton was being irritated by a dispute with the tax man in the Supreme Court, and retained Mr H to ameliorate the irritation, but was also briefing Mr H on behalf of his own clients, according to the article. It was Mr Brereton’s case which Mr H attended to on 29 March 2006, instructed by the female solicitor, who had by then gone out on her own, and was acting for Mr Brereton. The client was being sued for fees by a Melbourne law firm. He was adamant the firm had agreed to cap their fees at $50,000 and anyone who said they didn’t was lying through their teeth. So he turned to a silk who could cross-examine, Peter H QC, with a view to sicking him on the lawyer whose evidence needed demolishing. The client first went to see him on 29 January 2006. The client says Mr H told him he was available on the date of the 1 day trial, 29 March 2006, and to speak with his clerk about the fee. Mr H’s fee, $6,000 a day, was not enough to dissuade the client. No evidence was adduced by Mr H’s executors in relation to this meeting, however VCAT found that Mr H was not engaged at this meeting.

At least three further conferences followed, two with the client’s solicitor. Mr H accepted a folder of documents without a backsheet. The solicitor did not formally brief Mr H in other words. Things were a bit loose. Formalities were not really observed. But Mr H charged at least one fee.

The client had complained to the Bar’s Ethics Committee. The reasons do not disclose the result, if there was one. Mr H’s letters to the Committee were tendered as evidence of their contents despite the fact that VCAT described them as misleading and inaccurate in parts, and, in one respect ‘coy’. Obviously, hearsay was admitted. The rules of evidence do not apply strictly at VCAT. Senior Member Howell felt it necessary to admit hearsay because of VCAT’s statutory obligation to act fairly. The statements contained in the letters would probably not have been admitted under the common law in a court just because Mr H was dead at the time of the hearing, but would be admissible under s. 55(1) of the Evidence Act, 1958. Because Mr H could not be cross-examined on the statements, they would be accorded relatively low evidentiary weight.

Mr H’s letter to the Ethics Committee was described as coy when it said that Mr Crawford did not ask him to appear on 29 March 2006 until 21 March 2006. Senior Member Howell found that Mr H was engaged in February to appear on that date. On 21 March 2006, Mr H asked for a backsheet, and arranged a conference with Mr Crawford for the 28th, trial eve.

In fact, on 3 March 2006, Mr H had appeared before Master Evans in the Supreme Court and communicated Mr Brereton’s consent to the adjournment of Mr Brereton’s case. Mr H’s letters to the Ethics Committee said that after communicating to the Court that Mr Brereton consented to the adjournment of the matter, he left the date to be fixed by the solicitors, and did not find out that the adjourned date was the 29th until the 27th. If the female solicitor did not check with her client’s QC as to his availability for the adjournment before the order was made, presumably on or about 3 March 2006, it would be surprising. If she did, then there seems to be a bit missing from the evidence. It is not clear what was to happen in Mr Brereton’s case in the Supreme Court on the 29th.

On the 27th, Mr H indicated he might not be able to appear on the 29th after all. The next day he said he would be able to appear, but would be two hours late. It seems that the conference slated for the 28th probably did not take place. At 10 a.m. on the 29th, Mr Crawford accordingly had his trial stood down until noon, but Mr H never showed up. What had happened over in Master Evans’s court that morning was the subject of some evidence. It is clear that on that day, Mr Brereton’s matter had been adjourned by consent again, a process which would generally take only a few minutes (though of course we do not know when the consent was arrived at, the parties may have had to wait while a contested matter finished, and maybe this was an exception to the rule more generally).

Mr H’s letters to the Ethics Committee said that his ‘commitment’ in the Supreme Court finished at about 1 p.m. Master Evans’s associate was reported to have said that 3 March 2006 had been a light day, and that all Mr H had done was seek an adjournment, though Senior Member Howell indicated that the consent orders which were in evidence also contained some directions. (Mr Crawford’s account of Master Evans’s associate’s recollections was of course full-on hearsay, so both parties got their breaks.) The female solicitor said she doubted that negotiations with the tax man in which Mr H was engaged after the hearing had finished by 1 p.m., but later said she did not know when they had finished. Needless to say, negotiations can happen any time, and presumably Mr H was not ‘committed’ to negotiating instead of attending to Mr Crawford’s stood-down trial, but who knows?

When Mr H was not at the Magistrates’ Court at noon, the Magistrate adjourned the matter until the following day. Mr H agreed to meet Mr Crawford at 9.30 a.m. on his way to a Supreme Court trial which he had long been booked for and had warned Mr Crawford about from the outset. But he did not make that appointment either. Mr Crawford was unrepresented. What loss is said to have flowed from being unrepresented is not entirely clear, since the case was split between liability and quantum, and this was a determination of liability only.

In relation to Mr Crawford’s allegation that Mr H should not on 3 March 2006 have accepted a booking for the 29th when he had in February already been ‘engaged’ to appear in a trial that day, Senior Member Howell said:

‘Mr. [H] probably did not turn his mind to Mr. Crawford’s matter when the Supreme Court application was adjourned on 3 March 2006, or he would have avoided 29 March 2006. Counsel are not obliged to remember all their hearing commitments, although they are obliged to take action when they discover that they have conflicting commitments. Mr. [H] might not have appreciated that he had two cases on the same day until [the female solicitor] spoke to him on 27 March 2006, as stated in his letter. If so, Mr. [H] immediately notified [Mr Crawford’s solicitor] and, according to his letter, immediately asked [the female solicitor] if the Supreme Court application could be adjourned. Finally, the Australian Taxation Office might not have consented shortly before 29 March 2006 to the adjournment of the hearing fixed for that date.’

Then, in relation to Mr Crawford’s claim that, having accepted a new engagement to appear at noon, Mr H should have stuck to it, Senior Member Howell said:

‘Mr. Crawford bears the onus of establishing that Mr. [H] could have appeared for him on 29 March 2006. I am not satisfied that Mr. [H] could have appeared for him by 12 noon, the time at which the magistrate required the hearing to commence.

On 27 March 2006, when it is likely that Mr. [H] came to appreciate for the first time that he had two cases on 29 March 2006, Mr. [H] notified [Mr Crawford’s solicitor] of that situation. That gave Mr. Crawford adequate time to find different counsel, if he or [his solicitor] acted promptly. Mr. Crawford was determined to be represented by Mr. [H], and chose not to brief different counsel to defend the complaint brought by [the law firm suing him for fees]. Instead, [Mr Crawford’s solicitor had] the hearing stood down until 12 noon. Mr. Crawford hoped that Mr. [H] would be available by 12 noon. I am not satisfied that Mr. [H] was available by 12 noon. In any case, Mr. [H] already had given adequate notice of his situation to [Mr Crawford’s solicitor].’

In the case of neither of Mr Crawford’s claims was Senior Member Howell’s analysis redolent of contract law, and I surmise that Mr Crawford must have been presenting some cause of action other than one which would have gone ‘I hired you to turn up at noon on the 29th. You weren’t there. I was unrepresented. Compensate me for the loss I suffered as a result.’ Mr Crawford was unrepresented in the hearing before Senior Member Howell too, so it is possible that he went with something other than what might seem to a lawyer to be simplest. Of course, whether Mr Crawford had a claim in contract against Mr H is a tricky question, but Senior Member Howell did find that Mr Crawford ‘engaged’ Mr H, and since he also found that Mr Crawford’s solicitor did not prepare a backsheet, being unwilling to brief senior counsel without adequate monies in trust, it seems likely the ‘engagement’ must have been directly between Mr Crawford and Mr H.

See also:

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