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Solicitor’s ostensible authority to contract on behalf of client

In Zhang v VP302 SPV [2009] NSWSC 73, a solicitor negotiated a contract for the purchase of property by his clients. The vendor’s solicitor sent a draft contract.  The purchasers’ solicitor went through it with his clients.  They specified changes they required.  The purchasers’ solicitor put the changes to the vendor’s solicitor.  The vendor’s solicitor substantially accepted the changes, but in purporting to document them fiddled around the edges so that what was sent back was in effect a counter-offer. The purchaser’s solicitor already had a signed contract from his clients.  They had signed the execution page.  The solicitor played around with the contents of the previous pages so as to accept the vendor’s counter-offer, and sent off to the vendor’s solicitor the part signed by his clients.  It is not suggested that he was not acting in what he considered to be his clients’ interests.  But he did not take his clients’ instructions before agreeing to the counter-offer by sending off the part signed by them, amended in accordance with the counter-offer.

The purchasers desired to get out of the contract.  They said that they had never agreed to some of its terms.  The vendor’s position, not surprisingly was —

Too bad! your solicitor agreed to the terms we proposed on your behalf, we had no reason to believe he did not do so with your authority, we were entitled to rely on his ostensible authority, and you’re stuck with it.  If you’ve got a problem go sue him.

Sounded like a lay down misere for the vendors to me, but this decision unearthed a panoply of authorities for the proposition that a solicitor has no ostensible authority to bind his client to an ordinary contract.  (I say ‘ordinary’ because some kinds of contracts lawyers clearly do have ostensible authority to bind their clients to, for example contracts for the out of court settlement of litigation.)  Justice White of the NSW Supreme Court found for the vendor on this question in the end, but had to get over a  lot of hurdles along the way.  This was his Honour’s review of the authorities, and analysis of this issue: Continue reading “Solicitor’s ostensible authority to contract on behalf of client”

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Costs of complex litigation in presumptively costs-free consumer tribunals

A Queensland District Court judgment (Saunders v Paragon Property Investments Pty Ltd [2009] QDC 19) about the costs provision in a Queensland consumer tribunal has alerted me to a passage from a decision of the Queensland Court of Appeal (Tamawood Limited v Paans [2005] 2 Qd R 101) which might be useful in arguing for costs if you are successful in a complex VCAT proceeding. It runs contrary to the tenor of certain decisions of VCAT’s President Morris noted in Pizer’s Annotated VCAT Act, (3rd ed.) at points 6 and 7 on pp 426-7 in para [4039.1D], e.g. Buttigieg v Melton SC [2006] VCAT 1058, Mornington Peninsula SC v Fox, unreported, 24 October 2003.

Also, Ballymont Pty Ltd v Ipswich City Council [2002] QCA 454 at [19] to [20] is said to be authority for the proposition that the costs provisions of the consumer tribunal should not be thought to infect the costs provisions of an appellate forum. That is, the costs of an appeal from a consumer tribunal will be dealt with consistently with the costs of appeals generally. The useful passage from Tamawood, and a comparison between the Queensland costs provisions and VCAT’s are set out below. Continue reading “Costs of complex litigation in presumptively costs-free consumer tribunals”

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Review of decisions to exclude lawyers from ASIC and NCA examinations

This is a note about a decision by a judge who is only a year older than me, Justice Nye Perram, a novel and somewhat unsettling circumstance: Collard v Australian Securities & Investments Commission (No. 3) [2008] FCA 1681. I looked him up because the judgment is so beautifully written, and found a welcome in Bar News (go to p. 97). The case is about lawyers’ rights to appear for clients to be examined by ASIC (and also, incidentally, by the National Crime Authority). It is also of interest to me because of its discussion of who bears the burden of proof when seeking review in administrative law of a bureaucratic act which statute stipulates may only be taken if it is reasonable (or necessary) to do so. Who bears the burden of establishing reason or unreasonableness? Continue reading “Review of decisions to exclude lawyers from ASIC and NCA examinations”

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Calderbank offers

Calderbank offers — those marked ‘without prejudice except as to costs’ — are one of those subjects which recur so often that single judge decisions are constantly coming out, but one never knows exactly which ones to read. They all say much the same thing, with an equal degree of fuziness, and the illusion is that one may read the tea leaves to discern which way the wind is blowing. People are constantly typing ‘Calderbank offer’ into google and finding their way, for some reason, to my blog. So, for all those people, here is the latest and greatest discourse on the subject, a learned review in the nature of a tiny text by no less a luminary than a justice of the Supreme Court of NSW, Justice Beazley. It’s an extra-judicial bit of writing called, appealingly, ‘Calderbank offers’, available only on the website of the Supreme Court of NSW. Another authoritative and up-to-date source is the recently published second edition of Dal Pont’s also endearingly entitled Law of Costs.

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A genuine case of good corporate citizenship? From a drug company??

Since I enjoyed the hospitality of an Australian doctor doing malaria research in The Gambia on my way to Timbuktoo, I have watched the pace of malaria research with a slightly above average level of interest. There are several diseases caused by different mosquitoes. Acute and severe malarias can lead to comas and deaths within hours or days. Then there is chronic malaria. Incubation periods can be up to 30 years, and recurrence is common. It saps the energy of the young people and weakens economies by draining the workforce and requiring expenditure on health care. Most of the deaths occur in children in sub-Saharan Africa (that is to say, all of the countries except the ones at the top of the continent). The childhood survivors may suffer cognitive impairment.

According to Wikipedia, symptoms short of coma and death include light-headedness, shortness of breath, tachycardia, as well as other general symptoms such as fever, chills, nausea, flu-like illness.

I was unhappy to learn that a major cause of preventable malaria deaths in south-east Asia is counterfeit anti-malarials which are difficult to detect except by laboratory analysis. But accelerated change for the better seems to be afoot. US$3 billion has been pledged towards eradication by the international community, and the Bill and Melinda Gates Foundation has given US$168 million for research on a vaccine, and Bill Gates successfully attracted a lot of attention by letting loose a swarm of mosquitoes in a packed auditorium to which he was speaking. But what prompted this post is some excellent news hiding away amongst tales of tragedy from a very Australian scourge. Glaxo Smith Kline, the world’s second biggest drug company, has decided to donate patents in technologies which are needed for malaria to a pool which may be accessed by scientists working on a cure. And they are cutting the prices of drugs in 50 of the worst off nations, mainly in Africa, to no more than a quarter of the prices in the West. Mind you, given that the cost of a couple of dollars for an insecticide treated mosquito net is too great for many rural African potential sufferers, I am not sure how much of a difference that is going to make.

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Adjournments

In Brimbank Automotive Pty Ltd v Murphy [2009] VSC 26, Justice Kaye today neatly summarised the Victorian law in relation to applications to adjourn trials, in a thoroughly orthodox manner. All these kind of decisions say much the same thing, but with different emphases in relation to when a decision maker is entitled to say ‘Enough’s enough you goose. You’ve had your chances. I don’t care if you’re not ready for trial. We’re starting. Move it.’ The Readers’ Digest edition of KJ’s version — which makes no attempts to break free from The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 — is:

‘a court should not refuse an application for an adjournment, where to do so would cause injustice to the party making the application, unless the grant of the adjournment would occasion irreparable prejudice to the other side, such prejudice not being capable of being remedied by an appropriate order as to costs or otherwise. … The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties.’

Then his Honour upheld a Magistrate’s refusal to grant an adjournment application on the day of trial, but on the basis that it was unsupported by any evidence, truly an exceptional case. The full passage is as follows: Continue reading “Adjournments”

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Byrne v Marles reversed by legislation

I wrote about Byrne v Marles [2008] VSCA 78 here, and suggested reversal by legislation as a possible outcome.  The government slipped the Professional Standards and Legal Profession Act Amendment Act, 2008 through pretty quietly.  Two new sub-sections in the Legal Profession Act, 2004 add to the existing parent sections that nothing within them gives lawyers a right to be heard in relation to how a complaint is to be dealt with, or whether it should be summarily dismissed.  The relevant sections including their additions are set out below, and apply to complaints received by the Commissioner after 11 December 2008. I suggest that regardless of whether the Commissioner has an obligation to invite lawyers to do so, they should often take up these issues at the outset to ensure that there is in fact a valid disciplinary complaint, that its boundaries are clear and not exceeded, and that the Commissioner does not otherwise act without power.

Continue reading “Byrne v Marles reversed by legislation”

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Beak bribe boast bars barro

Legal Services Commissioner v JDG [2008] LPT 17 is a shocking case in which a Queensland barrister was struck off after he lied when confronted by investigators with the true proposition that he had offered to pay a $50,000 bribe to a Magistrate or Crown prosecutor on behalf of a client.  He also took $59,000 in cash from the direct access client and popped it into his safe.  He used some of it to feed his gambling.  He should, of course, have chucked it into a special account.  He told his client that: Continue reading “Beak bribe boast bars barro”

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Nettle JA on sentencing thieving lawyers

R v Maurice B [2008] VSC 254 records the sentencing remarks of Nettle JA apparently sitting in the trial division following a guilty plea by a solicitor who stole a quarter of a million dollars. The solicitor argued the state of his mind was relevant in two ways. First, he said his impaired mental functioning short of psychiatric illness at the time of the offending diminished his moral culpability. Secondly, what appears to have degenerated into a psychiatric illness (depression, anxiety disorder, panic attacks requiring anti-depressants) was a relevant consideration in determining an appropriate sentence.

Based on the psychiatric evidence, Justice of Appeal Nettle gave little truck indeed to the first claim, but did take the mental state of the solicitor by the time he had been through the Legal Profession Tribunal and the criminal charges into account in fashioning an appropriate sentence. In fact, along with the solicitor’s age (67) his mental condition at the time of sentencing was the thing which kept him out of the clink. His Honour conducted a survey of a number of Victorian cases involving thieving solicitors who received suspended sentences of imprisonment and remarked:

‘I doubt that the sentences imposed in at least some of those cases gave due weight to the overriding importance of general deterrence in matters of this kind. For, even allowing that a suspended sentence is a sentence of imprisonment for all purposes, it is manifestly less burdensome than an immediate term of imprisonment. It is also to be remembered that the maximum sentence for the offence of having a deficiency in a trust account has more than doubled since the Legal Professional Practice Act 1958 was first replaced by the Legal Practice Act 1996, from seven years to 15 years’ imprisonment. These days, the idea of a fully suspended sentence in a case of solicitor defalcation will seldom sit easily with the imperative that solicitors who act in fraudulent breach of trust account obligations “must … inevitably suffer severe punishment”.’

The whole of the relevant passage is: Continue reading “Nettle JA on sentencing thieving lawyers”