I have previously posted about the QC who took his computer into work at the DPP only to lose his career when the tech found child pornography on it. It was a bizarre story, and of course there was a twist which has become clear from the disciplinary decision in Council of the NSW Bar Association v PJPP [2008] NSWCA 135: the QC thought he had the porn sequestered on a removable hard drive (the F drive), which he removed before taking it into work, but some had crept out into the rest of the computer. This post looks at the discussion of what inferences, if any, it was proper to draw from the QC’s exercise of the right to silence at the investigation stage, and from his failure to give evidence at his disciplinary hearing. Continue reading “The right to silence in disciplinary and striking off hearings”
Latest word on burden of proof in professional discipline ‘prosecutions’
In this post, I just reproduce what Deputy President Dwyer said recently about the burden of proof, right to silence, and inferences which may be drawn from the fact of the exercise by a solicitor of the right to silence. He said it in the context of a hard-fought hearing into the conduct of Kylie’s one-time lawyer, Michael Brereton, reported on in the previous post. Interestingly, the Tribunal was not critical of the solicitor’s decision not to give evidence, but asserted that it was free to draw adverse inferences against the solicitor under the rule in Jones v Dunkel, and did so with gusto, drawing support from Woods v Legal Ombudsman [2004] VSCA 247, and Golem v Transport Accident Commission [No2] [2002] VCAT 736.)
What Mr Dwyer said was: Continue reading “Latest word on burden of proof in professional discipline ‘prosecutions’”
Kylie’s one-time lawyer goes down, with a ‘disgraceful and dishonourable’ finding
On 13 August 2008, Deputy President O’Dwyer found charges of misconduct at common law made out against Kylie Minogue’s one-time solicitor, the man towards the centre of the government’s Operation Wickenby investigation, Michael Brereton. See Legal Services Commissioner v Brereton [2008] VCAT 1723. Mr O’Dwyer found he had transferred more than $2.3 million of clients’ money out of his trust account contrary to the trust accounting rules. Since he did not turn up to the hearing, the finding is not altogether surprising. His counsel explained the solicitor ‘was attending to important business matters overseas, having invested in an information technology business with links in America and Europe,’ which makes me wonder whether he could not have used some of his investments to appear by video link. The Age‘s report is here.
The Commissioner is to be commended for making some sense of the very complex business transactions in which the solicitor and his clients were involved, and achieving the making out of the allegations of misconduct which were made out. So too the Tribunal, which had a difficult task in the absence of participation by the solicitor, and produced a spare but careful set of reasons. But it was not all wins for the Commissioner. Continue reading “Kylie’s one-time lawyer goes down, with a ‘disgraceful and dishonourable’ finding”
Magnetic Island
I spent a week on Magnetic Island just now. It is a good place: a big island with four little suburbs but mostly national park, where people live, go to school, the bakery, the chemist, and the doctor. It has good supermarkets. It has wonderfully hokey restaurants like Man Friday’s, a Mexican restaurant which has been there for 25 years, with light shades made from large tins, painted, and patterns banged out with hammer and nails. It has a fine fish and chips shop cum equally hokey seafood restaurant, and it has an honest Italian restaurant with a location on the beachfront to die for but without the prices which generally go with such places. It has blue winged kookaburras and pheasant coucals, red-tailed black cockatoos and koalas, real beach houses (consider this one, and this one), a Friday nightmarket put on by the RSL with a food stall put up by an Indonesian woman, and a dessert stall put up by a local lady who will sell you a one person pavlova and a one person trifle for a total of $6. It has old tractors and dilapidated buildings, everything that a seaside holiday should have.
It is, in other words, the antithesis of Noosa and Cairns, more like the Inverloch of the tropics, and is therefore something to rejoice in. It is just off the coast of Townsville, you see, a working man’s town with few tourists. Continue reading “Magnetic Island”
Limits on the Commissioner’s power to demand information and documents
Update: 26 February 2009 For an interesting review of the authorities relating to similar statutory investigators’ powers and the implied limitations to be found in the relevant statutes, see A. B. Pty Limited v Australian Crime Commission [2009] FCA 119, a decision of the Federal Court’s Justice Flick.
Original post: Once a complaint form has been lodged by a complainant with the Legal Services Commissioner, she has decided that it constitutes a ‘complaint’ as defined, has heard the respondent lawyer on whether it should be summarily dismissed, and has decided against that course, the Commissioner may exercise any or all of her draconian powers under s. 4.4.11 of the Legal Profession Act, 2004. That provision is reproduced in full at the end of the post, but it says that by a written notice, the Commissioner may require a lawyer under investigation to provide a ‘full written explanation’ of his or her conduct, and ‘any other information or documents’, regardless of whether they are privileged or not. The privilege against self-incrimination is no answer to such a demand. The equivalent section under the Legal Practice Act, 1996 was s. 149, and the equivalent inquisitor the Legal Ombudsman, whose last incarnation was Kate Hamond [sic., despite the spelling of the case name].
In Power v Hammond [2006] VSCA 25, Justice of Appeal Chernov said:
Continue reading “Limits on the Commissioner’s power to demand information and documents”
Drug trafficking Melbourne patent lawyer to be sentenced
The Age has reported the conviction for drug trafficking of a 41 year old church-going Melbourne patent lawyer with a Master of Laws after a shoe box containing about $170,000 in cash and $300,000 worth of the drug ice was found in her apartment. She is yet to be sentenced. It will be interesting to see what happens to her practising certificate.
Victorian judges more amenable to sophisticated costs orders in cases of partial success only
Update, 4 May 2009: For an example of these principles in operation in a professional negligence case in which proportionate liability was given effect to (I posted about the main decision here), see Sali v Metzke & Allen (No. 2) [2009] VSC 169, where the successful plaintiff’s costs were reduced by 30% because they raised and failed on numerous issues (and also because, reading between the lines, Justice Whelan was not very impressed by one of the plaintiff’s witnesses).
Original post: Costs have traditionally followed the event. Put up 5 reasons why you should get damages and win on 1 of them, and the starting point has been that you get the costs of the whole proceeding, including of the 4 causes of action which failed. Recent decisions of a Full Federal Court constituted by Victorians and of the Supreme Court have clearly signposted a desire in eminent Victorian judges to get sophisticated about costs so that claimants who propound claims which fail do not get (and may have to pay) the costs of doing so, even if they ‘win the case’. (This might be a good time for solicitors to think about amending that part of their standard costs disclosure letters which deals with s. 3.4.9(1)(g) of the Legal Profession Act, 2004 — range of costs likely to be recovered from the other side if successful.) Justice Robson’s 13,000 word decision on costs in GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296 may set a record for such judgments. Certainly, I would be surprised if there were another costs ruling with a table of contents. This is one conscientious judge. At [56]ff, his Honour said:
Is interest a form of relief VCAT can grant?
In a long-wnded way, I tentatively suggest that, so long as the applicant has the sense to invoke s. 108 of the Fair Trading Act, 1999, then penalty interest is available under the Supreme Court Act, 1986, just like in the Supreme Court, so long as the dispute is a consumer-trader dispute. That is, a dispute between a purchaser or potential purchaser and a supplier or potential supplier of goods and services, broadly defined. There are some causes of action which come with specific interest provisions too, like the one attached to costs disputes under the Legal Profession Act, 2004.
Continue reading “Is interest a form of relief VCAT can grant?”
Memories of law school
When I started law school, I could not have told you the difference between a barrister and solicitor, and I was perplexed why all the judges’ initials were ‘J’. For some reason, I thought it was absurd that there was an Act called the Acts Interpretation Act. I was contemptuous but nonetheless attracted to the English nonsense of Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Morris of Borth-y-Gest, and Lord Brandon of Oakbrook (I was ignorant of the existence of Lord Salmon of Sandwich). But until I read this very English article in that very English paper, The Times, I thought that it had been thus since time immemorial. In fact, these geographical curlicues are a modern affectation. There was no Lord Denning of Dover, Lord Diplock of Wigan, Lord Reid of the Rock of Gibraltar, or Lord Wilberforce of Land’s End. Even today, not all law lords use a place in their title. More strength to them.
Trial judge’s order that plaintiff’s solicitor pay costs personally overturned
The New South Wales Court of Appeal overturned a trial judge’s order that the plaintiff’s solicitor personally pay costs of joining a particular party against whom leave to discontinue was successfully sought in the first days of the trial. The order was made under s. 348 of the NSW Legal Profession Act, 2004, in a division of the Act (Part 3.2, Div 10) headed “Costs in civil claims where no reasonable prospects of success”. Basten JA gave the lead judgment with which the other judges agreed. The case is Flower v Toro Contructions Pty Ltd [2008] NSWCA 178
The fidelity fund
Update, 26 August 2009: Justices of Appeal Buchanan and Neave agreed with Acting Justice of Appeal Kyrou in dismissing the punters’ appeal from Justice Pagone’s decision. See Vaughan v Legal Services Board [2009] VSCA 187.
Original post: The fidelity fund is one of the areas of the legislation about lawyers I have never had much to do with. The basic principle is that when lawyers steal clients’ money, or deal with it in breach of trust, a fund contributed to by all the lawyers in the state pays out the victims. We have professional indemnity insurance for negligence and other forms of civil liability, but it is not available where there is a ‘defalcation or default as defined by’ the Legal Profession Act, 2004 (or, before that, the Legal Practice Act, 1996), regardless of whether there is a claim on the Fidelity Fund (cl. 20.6(b) of the 2008/2009 policy). And we have the fund for fraud by solicitors involving trust money.
Justice Pagone’s latest decision in Vaughan v Legal Services Board [2008] VSC 200, is a case about the washup of the crimes of former Kew solicitor Julie-Ann Laird who stole millions from her clients, telling them that everything she did was protected by the fidelity fund (a detail she denied in her police interview). It is a nice, spare, judgment. She lost her practising certificate for 20 years in the Legal Profession Tribunal, and subsequently, on 1 June 2005, Justice Kellam jailed her for 7 years with a minimum of 3 and a bit (see R v Laird [2005] VSC 185). This particular case, under the Legal Practice Act, 1996, turned on whether the monies received by Ms Laird were received by her in the course of legal practice. Justice Pagone was obviously comfortably satisfied that the wrongdoing did occur in the course of or in connection with legal practice, but held against the plaintiff claimants on the fund on the basis that an exception to the availability of the fund applied. The exception was s. 208(3)(b) and excluded claims in respect of defalcations arising out of the investment of money by a solicitor that is not merely incidental to the legal practice engaged. The whole of his Honour’s analysis of whether what Ms Laird did was in the course of, or in connection with, legal practice is as follows:
The implied undertaking yields to compulsion; relevance to a second proceeding a powerful ‘special circumstance’
Justice Pagone’s decision in Griffiths & Beerens Pty Ltd v Duggan [2008] VSC 230 came along just at the very moment I needed to find out the answer to a question I have always been unsure about. Say you have documents from one proceeding obtained from the other side on discovery. They are relevant to a related subsequent proceeding. Do you have to discover them? If so, do you have to give inspection of them? If not, would it be a contempt of Court to discover them? Justice Pagone says you should discover away and give inspection subject to anything the second Court might do in the interests of justice, because the implied undertaking yields both to statutory compulsion (e.g. an ATO examination) and also to ‘curial process’ such as discovery and subpoenas. He also said something which, it appears to me, comes close to an assertion that the implied undertaking prima facie does not preclude use of a document obtained in one proceeding in another proceeding, and that what the undertaking is really about is the use of documents obtained in litigation for purposes other than litigation (e.g. publication to the media). Continue reading “The implied undertaking yields to compulsion; relevance to a second proceeding a powerful ‘special circumstance’”