In Legal Services Commissioner v DJMH [2008] VCAT 2301, Deputy President McNamara’s tribunal ordered the solicitor not to practice before 1 July 2011 for multiple findings of acting in the face of a conflict. It is unfortunate that the reasons for decision do not allow an understanding of what was alleged. It had something to do with conflicts of duties in lending transactions described as ‘very serious indeed’. The gravamen of the charges, according to the Deputy President was that the solicitor: Continue reading “Solicitor gets three year break for multiple conflict findings”
The lien and the solicitor who finds himself practising certificateless
Update: More solicitors’ lien cases: Magnamain Investments Pty Ltd v Baker Johnson Lawyers [2008] QSC 245, and Stark v Dennett [2007] QSC 171, a case about who should be taken to have terminated the retainer and which sets out the law thoroughly.
Original post: As I have already noted in these pages, Issac B was given a holiday by VCAT, and told not to apply for a work ticket until next year. Since then, things have got considerably worse for the iconoclast, but more about that in a little while. Cosgriff v Issac B & Co [2008] VSC 515 reveals that Issac B & Co’s practice was ‘transferred to a multi-disciplinary practice in which Malcolm Buxton is the principal legal practitioner.’ Naturally, you can’t sell your clients. If they don’t want any truck with the new owner of the business, it’s tough titties for the new guy. So it was here: Issac’s former client went off and retained Slater & Gordon.
The question decided by Justice Byrne was whether the solicitor could maintain a lien in circumstances where his retainer had come to an end by virtue of his inability to practise. (As an aside, it is interesting that this is yet another decision of a case about a matter directly governed by the solicitors’ conduct rules, where the Court does not even mention them, as is also often the case in applications to enjoin solicitors from acting in the face of a conflict of duties.) The decision was that Issac B could not assert the lien, because he was taken to have terminated the retainer: Continue reading “The lien and the solicitor who finds himself practising certificateless”
Conduct in litigation as an aid to assessing party witnesses’ credibility
In Westmelton (Vic) Pty Ltd v Archer & Schulman [1982] VR 305, Starke, Kaye and Fullagar JJ commented on the trial judge’s finding that the evidence of a solicitor Archer should be preferred over that of one of Westmelton (Vic) Pty Ltd’s directors, because the director had avoided service of a subpoena. His Honour had said:
‘I have also to bear in mind that he … avoided service of a subpoena and came to Court only after I had given leave to effect substituted service on his wife.’
The appeal judges said:
‘Although his Honour saw and heard the witnesses, we were not referred to anything in the circumstances or in the evidence which would justify him drawing an inference adverse to the credit of [the director], or adverse to [Westmelton], merely from the fact that he, being a busy Sydney director for a large Sydney-based corporation, wished to escape if he could from the necessity of giving evidence from some time before the Supreme Court in Melbourne.’
But there are times when a party’s conduct in litigation will be taken into account in assessing their credibility as a witness. Back to one of my favourite judgments of recent times, Justice Bill Gillard’s Medibonk judgment in Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 (see this earlier post). His Honour said:
‘300 I am satisfied that Ms Li lied in respect to a number of material issues and she lied because she knew that if she told the truth it would be established, first, that she was conducting an illegal brothel, secondly, that she was providing sexual services for money, thirdly, that she was a prostitute in the sense of charging for sexual services, and fourthly, that she had signed and issued false receipts to enable her patients to make an application for a refund from a private medical insurer. I am satisfied the false denials provide cogent evidence supporting the defence of justification that Ms Li was providing sexual services for clients and issuing them with false receipts to enable them to recover a refund from their private insurers.301 My conclusion is reinforced by Ms Li’s conduct and that of her lawyers in respect to the institution of this proceeding and during the following ten months, which leads to the conclusion that she, and her legal team, had little faith in her own personal claim. Continue reading “Conduct in litigation as an aid to assessing party witnesses’ credibility”
Professional misconduct seminar
The Law Institute is presenting a seminar on professional misconduct on Thursday evening from 5.30 p.m. A reserve tickets are selling for the bargain price of just $175. The blurb says:
‘Kim [Lovegrove, a solicitor] and Sav [Korica, a barrister] will discuss the wider implications of the ways in which professional misconduct is dealt with in many disparate professions, and how many tribunals and disciplinary bodies have come to resemble each other in their methodology.’
Is the draft witness statement held by the witness privileged?
Justice Finkelstein’s decision in Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620 has provided material for the last 2 posts. Now, a third. His Honour had to consider a question I have never been too sure about. Say there is a case on foot, but it’s long before trial. A solicitor for one of the parties interviews a witness. The witness says his thing. The solicitor turns it into a witness statement. The solicitor sends the witness a copy. There is no doubt that the original witness statement drafted by and retained by the solicitor is privileged under the litigation limb of legal professional privilege. But what about the copy held by the witness?
Well, though it’s clearly privileged under the uniform evidence legislation, there’s conflicting authority in relation to the position at common law. The two most recent appellate authorities say the witness statement and the copy witness statement are both privileged. On the other hand, Chief Justice French plumped for the opposite conclusion while on the Federal Court. Even if it is privileged, that cannot mean that the witness cannot say the whole thing over again to anyone else who may care to enquire, because there is ‘no property in a witness’. And I do not suppose the witness would have any positive obligation to assert the solicitor’s client’s privilege (anyone disagree?). But depending on the cirucmstances, the witness may owe an obligation of confidentiality to the solicitor’s client which would give rise to equitable rights in the solicitor’s client if the witness gave up the witness statement. Of course compulsion, such as an obligation of discovery under rules of court, properly administered interrogatories, a regulator exercising a statutory power, and a subpoena trump mere confidentiality. It may be that in the face of compulsion, only if the solicitor’s client stepped in and asserted his or her privilege over the documents would the compulsion not result in delivery up of the witness statement. Justice Finkelstein’s learned analysis went like this: Continue reading “Is the draft witness statement held by the witness privileged?”
Da Fink reckons the Bureau should act with the fairness of Crown prosecutors
In Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620, Justice Ray Finkelstein, aka da Fink, sowed a seed for future courts to take up and declare that regulatory authorities bringing civil penalty proceedings should have the same duties as criminal prosecutors. Having cited the authority to say that they do not, his Honour said:
’35 A lay person might be forgiven for thinking that in the present context the distinction between civil and criminal proceedings is somewhat artificial and that in both kinds of proceedings the regulatory authority or prosecutor (as the case may be) is under a duty to ensure that the decider of facts (judge or jury) is best placed to arrive at the proper and just result.’
Then, with the judicial equivalent of biting sarcasm:
‘Perhaps the reason courts have rejected this approach is that in a criminal proceeding a conviction may result in imprisonment whereas in a civil penalty proceeding the worst that can happen is that the defendant’s career is ruined or his life is wrecked.’
Continue reading “Da Fink reckons the Bureau should act with the fairness of Crown prosecutors”
VCAT reversed for ignoring penalty privilege in merits review of disciplinary proceeding
CT v Medical Practitioners Board [2008] VSCA 157 is a very important ruling for the world of professional discipline, and its intersection with the world of VCAT. A doctor sought merits review of a disciplinary decision of the Board. The Court of Appeal made clear that the penalty privilege (a close relation of the privilege against self-incrimination), when applied to disciplinary hearings where a penalty such as a fine or a suspension from practice may be imposed (including rehearings such as merits reviews in VCAT), means that VCAT ought not give directions which:
‘require the applicant for review to provide an outline of argument, or any other written material, which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the case advanced against the applicant has been completed.’ Continue reading “VCAT reversed for ignoring penalty privilege in merits review of disciplinary proceeding”
Solicitors as agents
The Bell Group litigation was a big one. Richard Ackland reports on Justice Owen’s attempts to make more enjoyable the process of writing judgment in a matter the trial of which went for 400 days over 3 years. You will be relieved to know that I have not read The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239. But I did have a look at it. The penultimate paragraph (no. 9761) reads:
‘From time to time during the last five years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeast-based substance. It will most certainly involve a complete avoidance of making decisions and writing judgments.’
(I am interested to know what others think “(which may even bear that name)” means. There is certainly a winery named Nepenthe, but it seemed more likely to me that the drug of forgetting Justice Owen had in mind was in fact Westralian beer — perhaps Little Creatures as an antidote to the behemoth that was this case.)
But blow me down if there isn’t something of interest to this blog: an analysis of the solicitor qua agent of the client, and the imputation of knowledge from the one to the other. I’m sure the time will come soon enough when I will be glad of Justice Owen’s industry, and pleased with myself for squirrelling this passage away. Here goes: Continue reading “Solicitors as agents”