It is well established in VCAT that when doctors and lawyers engage in professional activities in the course of their retainers, e.g. by giving advice, interviewing witnesses, and representing clients, they do not engage in trade or commerce: see for example Stagliano v Duke [2007] VCAT 1070, which I posted about here. Most Fair Trading Act, 1999 causes of action are available only in respect of conduct in trade or commerce. But is the workaround its consumer and trader dispute jurisdiction? The authorities are at odds with one another. Continue reading “Can lawyers sue and be sued under the Fair Trading Act, 1999?”
Yet another sole practitioner ignores the Bureau (yawn)
In Legal Services Commissioner v RMB [2008] VCAT 170, the Bureau de Spank prosecuted a Fitzroy sole practitioner who had studiously ignored a complaint for nearly 11 months. The solicitor finished up paying just $2,500 including costs. Again, the Commissioner is to be commended for keeping costs low ($1,500) by sending along one of her complaint handlers, Anita Spitzer. The solicitor had no good excuse for her impertinence, but was given a discount for never having been found guilty of a disciplinary offence before (a status no doubt shared by 99% of practitioners), and, no doubt, for admitting the allegations. Continue reading “Yet another sole practitioner ignores the Bureau (yawn)”
Anshun estoppel’s application to the post-fees case professional negligence claim
To what extent can you defend a suit by your solicitor for fees and then turn around after settlement, or after the trial of that suit, and sue for negligence? The leading Victorian case on the question is Delahunty v Howell, unreported, Supreme Court of Victoria, Gray J, 12 May 1993 (BC9300688). It was an administrative law review of a decision of VCAT’s Senior Member Howell back when he was Registrar of the Solicitors Board. This post considers that decision and subsequent decisions of VCAT’s predecessors which have applied it. Continue reading “Anshun estoppel’s application to the post-fees case professional negligence claim”
VCAT runs out of patience with serial adjourner
I was drinking beer at The Peacock the other afternoon, and a VCAT member was muttering about the Supreme Court overturning VCAT decisions on the basis that applications for adjournment were not granted when they could have been cured by an order for costs. The suggestion was that the Court may have overlooked the fact that no costs are awardable in certain classes of cases. The other point was that in many lists, like the civil list, members are expected to churn through a case an hour, without the assistance of counsel on which decision makers generally rely on so heavily.
My conversation came back to me while reading HL v Fahey [2007] VCAT 2400, a case about Ms Fahey’s dissatisfaction with a bill for $1,199. Ms Fahey successfully sought 2 adjournments. The first time, she had to go to Norway for a qualifying competition for the Olympics. Her game is dressage. The second time, she simply wrote in sick. The third time, she attached a sick note from a doctor. VCAT told her that administrative adjournments were over and told her to come to the hearing and make her application there, and to be ready to proceed if she failed. She did not turn up, and so an order was made against her. She sought a review, akin to an application to set aside a default judgment. She sent a fax to VCAT at 9.36 a.m. before the 10 a.m. hearing in which she said she was ‘unable to attend today’s review hearing due to extreme illness’, and concluded ‘I will contact you again in the future to arrange a new review date.’ That attempt to direct the Tribunal to adjourn failed, and Senior Member Howell heard the case in her absence, saying: Continue reading “VCAT runs out of patience with serial adjourner”
Rise of the celebrity QC and of Australian lawyer rankings
Update, 7 June 2008: The Age‘s weekend magazine had a front cover profile of Dave Hughes, and the same day the June Australian Financial Review Magazine had a front cover profile of Tom Hughes. Diverse and powerful as Tom’s family is, I do not think it counts Dave as a member. This is the most fawning, glossy QC portrait in the series: no fewer than 7 photos, two full-pagers. The hagiographical profile reminded me that Tom is art critic Robert Hughes’s brother. Before court, he works Jesuitically for four hours every day on the 62nd floor of the MLC Tower, leaving for work at 4.55 a.m. He has been a barrister for almost 60 years. These days, his junior is often his son Tom Hughes. His daughter Lucy is one-time mayor of Sydney and happens to be married to Malcolm Turnbull. France gave him a legion of honour for his service in World War II. He was mates with Sir Owen Dixon, Sir Frank Packer, and Sir John Gorton. He argued in the Privy Council. He was for 16 months Attorney-General in Gorton’s government: John Howard was his campaign manager when he got elected. He enthused mightily about the American intervention in Vietnam. What is most interesting however, is that this is not the first front page profile Hughes has suffered:
‘In early 1978, the now-defunct Bulletin magazine, owned by Kerry Packer’s Australian Consolidate Press, splashed across its cover a large photo of Tom Hughes, with a story headlined “From Silk to Riches — Portrait of a $1,000 a day QC”. Soon afer the article appeared, its author, Malcolm Turnbull, sent a bouquet of roses around to Tom Hughes’s chambers for his daughter, Lucy, then aged 19, who had just completed first-year law. Turnbull married Lucy Hughes two years later.’
Update, 23 April 2008: Now The Times has published its list of the 100 most powerful English lawyers. Sir Igor Judge is right up there in the top ten.
Original post: It’s not just Peter Faris, with his blog, his until-recently radio show, his comments about the Fijian judiciary in the Fiji Times, and repeated Age profiles. Has anyone else noticed the rise of the celebrity QC profile? The glossy Melbourne Magazine, published monthly by The Age, had a profile of Julian Burnside QC last year. Like Geoffrey Robertson QC (remember his hypotheticals?), Mr Burnside writes and his profile was part of the publishing cycle, tied in with his new book. But Colin Lovitt QC — best known for representing Jaidyn Leskie’s babysitter, Greg Domaszewicz — profiled in Royal Auto? (Turns out from the profile he did the whole thing pro bono.) And, Alan Myers QC, of all people, the very exemplar of the traditional Bar, reminiscing about his first tax case in The Australian Financial Review? Is it a trend I see?
Mr Myers’ profile was part of another new phenomenon, lawyer ranking blinged up to the next level, a great big US-inspired lift-out supplement to the AFR’s Legal Affairs pages. Continue reading “Rise of the celebrity QC and of Australian lawyer rankings”
Ohio State Medical Association Frivolous Lawsuits Committee scores 3 victories against med neg plaintiff lawyers
The Ohio State Medical Association’s Frivolous Lawsuit Committee defended 3 frivolous medical negligence suits against members and funded counterclaims by the defendant doctors against the plaintiff’s solicitors for bringing hopeless claims. The doctors succeeded. Continue reading “Ohio State Medical Association Frivolous Lawsuits Committee scores 3 victories against med neg plaintiff lawyers”
I have only respect and honour for your Honour
Schadenfreude being a German word, I suppose this must be an example of überschadenfreude. To watch this man digging his own grave made my guts clench up with distress. An advocate turns up more than an hour late to run a criminal trial in a Las Vegas court for a man facing a life sentence. Claiming to be ‘stone cold sober’ things don’t go well, and he implores a judge not to breath test him in court, with the invocation ‘I have only respect and honour for your Honour’. The charm doesn’t work. It is not a happy ending.
Bad bad dermatologist
Update, 24 June 2008: the Herald Sun today revealed the doctor’s attempt to sell his Toorak home until the sale was restrained by police, and that Slater & Gordon are suing the Medical Board for damages on behalf of the doctor’s victims. Should be interesting. People will be suing the Law Institute next for not rubbing out with sufficient vigor dodgy solicitors who then go on to rip them off.
The dermatologist does not necessarily spring to mind as the specialist with the opportunity to rape patients after getting them starkers and photographing them without their consent with his mobile phone, while ‘panting’ with excitement. This one managed it, and sexually assaulted or digitally raped his patients, 14 of them. He survived 2 complaints to the Medical Board by deliberately deceiving it, but continued to offend. The Board has apologised to his victims, is reviewing other cases, and has revealed that the relationship between the police and the Board broke down so badly that the police turned up with a search warrant. There are suggestions of mental health issues by his relatives. He hired a female QC to defend him against the female prosecutrix, and his own counsel described him to the court as a nerd: Continue reading “Bad bad dermatologist”
VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work
Praag v W & T Lawyers [2008] VCAT 307 was a rare thing: a case in VCAT’s Legal Practice List actually prosecuted pursuant to the Legal Profession Act, 2004. Mr Praag was his late mother’s executor. Before her death, she lived in Canberra. Her assets were a house in Canberra and $50,000 cash. Mr Praag went to the respondent solicitors who said they would get probate of the will for $2,800. The scale cost for doing so was $499. They did not otherwise comply with the costs disclosure regime in the Legal Profession Act, 2004. In fact it was unnecessary to get probate in Victoria, and it would have been better to have got it in the ACT. Though Mr Praag was able to withdraw the cash from the Bank with the Victorian parchment, he was unable to deal with the house unless he resealed the probate in ACT, which cost a bit extra on top of the cost of getting probate. Member Butcher mentioned several ‘concerns’ he had before concluding: Continue reading “VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work”
Unilateral communications with the Court
Justice Young, the editor of the Australian Law Journal, has gone public with his frustration at litigants constantly ringing his associate to dob in the other side for missing deadlines. Here’s The Australian‘s article. He reiterates the unambiguity of the rule against unilateral communications. Generally, one never corresponds with a judge in relation to litigation. One communicates in writing or by oral submissions only in the courtroom under the theoretical glare of public scrutiny. If it is necessary to communicate a document outside of the courtroom, one addresses it to the judge’s associate. Judicial detachment is achieved by both parties to the communication communicating only through the associate. Continue reading “Unilateral communications with the Court”