Tendency evidence in solicitor’s negligence case

Vaccaro v Flammia [2008] NSWSC 1322 is a tantalizing case about the admissibility of tendency evidence of dishonesty against a solicitor and about issue estoppel arising from earlier cases brought by others against the same solicitor.  It was decided against the uniform evidence legislation which has been introduced into Victoria by the Evidence Act, 2008 (Vic.), yet to commence.  The tantalization which is an incident of this being only an interlocutory decision will be consummated if the matter goes to trial.

The solicitor’s clients left a certificate of title with him for safekeeping.  He kept it in ‘a tin’ in the back room of his practice.  Someone took it without the clients’ authorization and raised $400,000 by forging their signatures on a mortgage.  The clients did not receive any of the money.  The witness which the mortgage instrument suggested had witnessed it did not exist. Continue reading “Tendency evidence in solicitor’s negligence case”

Reasons

It is very frustrating when you receive a judgment which skates over the points you think were good ones without grappling with them.  Turns out it is an appellable error of law.  The guy who won half a million dollars for assault by Connex officers after he spat in their face and broke his wrist as he fled got rolled on appeal, though he lives to fight another day in a retrial: ACN 087 528 774 P/L v Chetcuti [2008] VSCA 274.  The trial judge’s reasons were inadequate, according to Acting Justice of Appeal Hargrave, with whom Justices of Appeal Ashley and Dodds-Streeton agreed.  His Honour said: Continue reading “Reasons”

Dentist does worse on appeal to VCAT than before the Dental Practice Board

In Von S v Dental Practice Board [2008] VCAT 2302, a dentist sought merits review in VCAT of a decision of the Dental Practice Board to suspend his registration for 3 months.  He had practised for two and a half months without being registered (a crime punishable by a maximum fine of $11,000), practised without insurance for 20 months, and been uncooperative when the Board sought to investigate him by failing to respond to letters, and then breaking a promise to see a psychologist and provide a report. Continue reading “Dentist does worse on appeal to VCAT than before the Dental Practice Board”

Unrepresented David’s bank obliteration results in judicial call for ‘The Castle’ sequel

I staved off a bank’s applications for summary judgment for possession last year, and maintain the battle.  I will not say victory flowed from my argument that the evidence which purported to establish the incorporation of one of Australia’s largest banks was inadmissible, but I did make that argument, and a perfectly valid one it was too, though had it been necessary no doubt it could have been cured by an adjournment.  I do not think it endeared me to the Supreme Court.  But as this case shows, you can’t assume anything.

Justice Kenneth Crispin is obviously a man with a sense of humour.  He retired last year, and his farewell speech is worth a read.  The quiet humour, though, is to be found in his Honour’s recitation of the dogged victory of pro se litigants Stanley Stergiou and his wife Ekaterine in Stergiou v Citibank Savings Ltd [2005] ACTCA 15. A Greek migrant, Mr Stergiou was in his 70s at the time of victory.  If the story does not warm the cockles of your heart then you are an un-Australian curmudgeon. The judgment of the President of the ACT Court of Appeal began: Continue reading “Unrepresented David’s bank obliteration results in judicial call for ‘The Castle’ sequel”

Negligence claim against solicitor is a relevant factor in a limitation period extension application

Personal injuries guru recently turned Supreme Court judge, Justice Forrest, declined an application for an extension of time in which to bring an action for negligence against a cruise line. The case was Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517. His Honour said the case against the cruise line was a simple, one issue case.  Had the extension application succeeded, the trial would have taken place nine years after the allegedly negligent treatment of a heart attack suffered by the plaintiff at sea.  The representation of the plaintiff by his former solicitors S&G Ltd was characterised by ‘ineptitude’, the judge found.

A key reason for declining the extension was the availability of a reasonably simple cause of action for negligence against the plaintiff’s former solicitors.  Justice Forrest had more material against which to judge the prospects of success in such a claim than in other cases, where the signficance of the availability of a negligence claim against the applicants’ former solicitors was downplayed.  His Honour had enough to conclude that the plaintiff had a ‘powerful if not overwhelming case’ against S&G Ltd (I can feel a settlement coming on…).  His Honour set out the law in relation to the relevance of an extension of time application of the availability of a professional negligence claim against a solicitor as follows: Continue reading “Negligence claim against solicitor is a relevant factor in a limitation period extension application”

Ian Enright’s Professional Indemnity Insurance Law

I have a bad habit of buying books which cost several hundred dollars each and get overtaken by new editions after a couple of years. I am yet to experience the pain of an expensive text I have bought going into a new edition though, so nascent is my career as a barrister.  About this time last year, I had lunch with a judge of the Supreme Court who told me to my absolute astonishment that at the height of his career at the Bar, he spent $80,000 a year on books and reports. That news did me no good at all.

Texts are good, a basic fact of legal life which young lawyers are rapidly overlooking.  Without text writers, the law could not possibly survive in its current form.  They have an important function.  They ignore the bad decisions and explain what the long ones mean.

I picked up most of the library of John de Konig when he retired in June.  So I’m seriously well stocked for insurance texts — Sutton’s Insurance Law in Australia, Derrington’s Liability Insurance Law, Kelly & Ball’s Principles of Insurance Law, Mann’s Annotated Insurance Contracts Act, Tarr’s Australian Insurance Law, Clarke’s The Law of Insurance Contracts, Ivamy’s General Principles of Insurance Law, and even Mitchell’s The Law of Subrogation (feel free to come and borrow them).

Recently I picked up a serious text: Ian Enright and Digby Jess’s Anglo-Australian Professional Indemnity Insurance Law, Second Edition, December 2007.  It has a green faux leather hard cover with gold lettering.   Published by Thomson, it’s almost 1,000 pages long, and retails at $541.  It’s a monumental work, the only one devoted exclusively to its subject, and it naturally won the 2008 British Insurance Law Association prize for the most notable contribution to the literature of insurance law for the year.  It’s a good book because it achieves one of Enright’s aims, which was to start each topic at the start so as to make it accessible to the non-specialist reader.  It is well-organised, and carefully cross-referenced.  And it contains lots of answers, which is handy because that’s what I’m in the business of selling. Continue reading “Ian Enright’s Professional Indemnity Insurance Law”

Special responsibilities of lawyers as litigants

Lawyers are the only litigants who are entitled to recover from the counterparty in litigation costs for representing themselves: Guss v Veenhuizen (No 2) (1976) 136 CLR 47.  Suing the client for fees can therefore be a nice little earner for lawyers.  There is a species of lawyer whose suits for fees are conducted in an ugly fashion, particularly where the former client is unrepresented. I do not like it when I see cases where solicitors have issued chambers summonses without notice to strike out incompetently prepared handwritten defences, obtained costs of their own appearance, and then issued a summons for oral examination when the costs go unpaid. No doubt this kind of abuse explains why there are limits on the entitlement to sue for fees, such as the obligation to wait 65 days after giving the bill: s. 3.4.33(1), Legal Profession Act, 2004.

If ever you need authority to throw at a lawyer who seems to be using the processes of the Court in an over-enthusiastic manner, check out Circuit Finance v Gardner [2006] VSC 70 (which was not a case about a suit for fees). Continue reading “Special responsibilities of lawyers as litigants”