Posted on

A new text on professional discipline

Lovegrove & Lord‘s Kim Lovegrove and barrister Sav Korica have just published a little book called Disciplinary Hearings and Advocacy (Hybrid, 2009). It sells for $39.95. Lovegrove is the Chairman of the Building Practitioners Board, and presides over disciplinary hearings. I suspect that frustration with other decision makers’ decision making (‘there may exist some, particularly those who are not legally trained, who may harbour a misconception about the purpose of disciplinary porceedings in that they may be of the view that their primary mandate is to punish’) and, more particularly, with the attitude adopted by advocates appearing before him (‘Members are often bamboozled about determining whether an advocate is contesting or mitigating’) has driven him to write the book. Continue reading “A new text on professional discipline”

Posted on

On splitting liability and quantum

In this post, I reproduce an extract from Justice Hoeben’s recent decision in Johnson v Trustees of the Roman Catholic Church [2009] NSWSC 309 which discusses the increasing willingness of courts (in NSW at least) to determine preliminary issues before the main trial. In this case, everything except for quantum was ordered to be determined in a first trial, with a second trial on quantum only if necessitated by the outcome of the first trial. It was a kind of professional negligence case in a sense: a pupil was suing her school for her teacher’s negligence while she was on school camp.

The only reform of civil justice I seem to hear about these days is an increasing emphasis on mediation. Well, that’s an exaggeration, since Victoria is about to join the uniform evidence legislation jurisdictions, and its Attorney-General proposes to unify the rules for all the courts (excellent idea), but I will put aside these promising developments for a moment. I suggest that rather than increasing the amount of mediation, civil justice reform should concentrate on increasing the level of judicial adjudication, which does not necessarily mean increasing the number of once and for all oral trials of all issues.  What there should be more mediation of is not the final outcome of cases, but the things which litigants at the moment typically go to court for: interlocutory battles.  Far better to outsource the adjudication of disputes about discovery and the parties’ articulation of their respective cases so that the trial is prepared quickly than to outsource the resolution of complaints. Continue reading “On splitting liability and quantum”

Posted on

Free Victorian legal commentary

I like lawyers who state the law on the internet for free.  Australia is good at this in the sense of making raw materials available via Austlii.  What there is very little of is commentary, and exposition of the law. I have previously sung the praises of John Stratton’s NSW treasure trove of material about criminal law in NSW. And there is the extraordinary resource that is Jeremy Gans’s commentary on the Victorian Human Rights Charter.  Recently, though, I have come across two more Victorian lawyers who are stating the law for free on the web, Don Just and Julie Clarke (about whom, more below). And there is a new quality law blog in town: Quis Custodiet Ipsos Custodes, described by its anonymous author as ‘Some potted thoughts and meanderings about law, legal developments and summary prosecutions in Victoria.’  It has a link today to the Judicial College of Victoria’s Criminal Proceedings Manual, a work in progress in anticipation of the commencement of the revolutionary Criminal Procedure Act, 2009.

Continue reading “Free Victorian legal commentary”

Posted on

Sentencing guideline published by English barristers’ Bureau de Spank

A stranger who revealed herself as one of the many mysterious anonymous and silent consumers of my outpourings has given me a useful headsup which I hereby pass on to all of you. The Bar Standards Board — an independent entity hived off from the English Bar of old in the name of further dismantling of self-regulation of the profession — has published a guideline for the disposition of disciplinary complaints against barristers. An interesting sanction available to the Board’s disciplinary bodies is a requirement to take a test in relation to professional ethics. Continue reading “Sentencing guideline published by English barristers’ Bureau de Spank”

Posted on

The construction of the full common law release

Litigation was settled for several million dollars. The release said

‘5. The plaintiffs hereby release the defendants from all claims, actions, suits, demands arising from or in any way connected with the Proceedings, the allegations contained in the Statement of Claim and of the liquidation of the third plaintiff.’

That’s the kind of release you can get when you’re willing to pay several mil for it. But what does it mean? ‘Don’t even think of bugging me ever again, in relation to anything that happened in the past, whether you’re aware of it or not’ or something more confined?  It is a question which crops up relatively often in practice, but the law on the subject has always seemed pretty obscure.  When several mil’s on the table people jump into these kinds of releases. Sometimes, they come to regret it. Justice Einstein explained the principles, in Shepherds Producers Co-operative Limited v Lamont [2009] NSWSC 294, commencing with the handy summary of the principles applicable to the construction of releases reproduced below. Continue reading “The construction of the full common law release”

Posted on

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

Update: See now Tomolo v Superior Meat & Poultry Supply (Aust) Pty Ltd [2021] VCC 1081.

Original post: I posted about this issue, as it arose in a 2007 decision of Justice Forrest, here. Since May 2003, certain Victorian actions for personal injury must be brought within 3 years after the injury was discovered to be attributable to the defendant’s negligence, or 12 years after the allegedly negligence conduct, whichever comes first.  Previously the limitation period was six years.  The period may be extended by the Court. In Delai v Western District Health Service [2009] VSC 151, Justice Beach explained why he granted the medical negligence claimant’s application.  The defendants argued that she had good prospects of suing her solicitor for negligently allowing the limitation period to go by, but that was not a sufficiently cogent consideration to get in the way of the success of the application. I reproduce the whole of the relevant discussion from the judgment:

Continue reading “Negligence claim against solicitor is a relevant factor in a limitation period extension application, part II”

Posted on

Criminal prosecutions (-not) by disciplinary authorities

Updates, 13 June and 24 October 2012: See now Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79 from [23] and Legal Profession Complaints Committee v Masten [2010] WASAT 47.

Original post: The Building Practitioners Board is the Bureau de Spank for builders. It initiated an inquiry into whether a builder had breached a provision of the Building Act, 1993 (Vic.).  The provision prohibited builders from building without a permit.  Breach is a crime, but the Board is not entitled to prosecute offences under the Act, for which there is a limitation period of 3 years from the end of the building.  The Builder applied for judicial review of the decision to hold the inquiry, and the outcome is reported as Rodwell v Building Practitioners Board [2009] VCS 146.  He said that a disciplinary hearing into whether he had committed a crime was ‘a proceeding for an offence’.  If he was right, then the limitation period, which was attached to that concept, had already run, and the Board did not have the power to hold the inquiry.  Justice Hollingworth held against the builder. Continue reading “Criminal prosecutions (-not) by disciplinary authorities”

Posted on

Professional confidentiality and the ‘iniquity exception’

Update, 13 January 2010: See now British American Tobacco Australia Limited v Gordon (No 3) [2009] VSC 619.

In Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42, the Perth QC who announced to the Australian media that Schapelle Corby’s Balinese lawyers were trying to get money to bribe the judges sought to excuse his breach of confidence by reference to the proposition that there is no confidentiality in an iniquity. The Tribunal rejected that argument, saying that if the rule had operation in this case, it could have justified only disclosure of the contemplation of a bribe to ‘the appropriate authority’ which certainly was not The West Australian.  The Tribunal’s reasoning is reproduced below.  Before that is its explanation of the source and obligations of professional confidentiality, where it reiterated two points which in my experience cannot be reiterated too often:

  • First, the Tribunal said it would be a mistake to try to make the obligations of professional condidentiality fit into the rules which govern trade secrets, i.e. the principles of equitable breach of confidence.  Equally, something might be confidential even if not privileged, for example because of the Cox v Railton exception to privilege; in other words, it does not follow from the lawyer’s inability to resist a proper compulsion to produce information gained as a result of a lawyer-client relationship that the lawyer may volunteer that same information.
  • Secondly, it said that the confidentiality obligation is not only to keep secret that which is secret, but also not to make anything any less secret which has already begun to lose its secrecy.  Here, the media was already on to the possibility of a bribe being considered.  But the QC’s confirmation of it gave that fact an authenticity and newsworthiness which it did not previously have. Continue reading “Professional confidentiality and the ‘iniquity exception’”
Posted on

Inferences arising from failure to call a witness for fear of what they would say

Even though I can remember little about them, I know that two of my favourite books are the 18 year old Francoise Sagan’s Bonjour Tristesse and Helen Garner’s The Children’s Bach.  They are both short.  A book is a good book when you can finish it in one bath.  Entertaining as Justice Owen’s judgment writing style was in The Bell Group Ltd v Westpac Banking Corporation [No 9] [2008] WASC 239, it is not a short decision.  Much is probably buried away in there, unlikely to be read in this drought, for want of sufficient rainy days. So here is his Honour’s handy exposition of the rule in Jones v Dunkel, which commences at paragraph 999: Continue reading “Inferences arising from failure to call a witness for fear of what they would say”

Posted on

The preconditions to a confidentiality obligation by a barrister

In Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42 the prosecutor, the Committee, framed its case on the existence of a retainer, or on a prospective retainer.  The Tribunal did not allow it to morph into an allegation of breach of an equitable duty of confidence.  So the question arose as to what, exactly, a ‘retainer’ is, in the context of a barrister and a client, especially as in this case where there was no solicitor briefing the barrister, and there was no expectation of a fee. The Tribunal held that it was not a contractual relationship which was the touchstone for the creation of confidentiality obligations, but rather

‘the inquiry is whether the relationship of barrister and client is established in the circumstances. That may depend on the purpose of the inquiry. In our view, in the present context, so much might readily be accepted where a barrister acting in the course of the barrister’s professional duties meets with and provides or offers to provide legal advice or assistance to a lay person (or other lawyer on behalf of the lay client) who seeks that advice or assistance. In those circumstances, and whether or not the barrister offers ongoing services, the barrister is retained by the client.’

The whole of the exposition of the law in this regard was: Continue reading “The preconditions to a confidentiality obligation by a barrister”

Posted on

Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application of the rule in Jones v Dunkel to disciplinary prosecutions in tribunals (like VCAT) which are not bound by the rules of evidence.  The practitioner sought to have inferences drawn against the prosecutor from the fact that Schapelle Corby, whom he said might have been considered to be a critical witness for the prosecution, did not give any evidence.  The inferences sought was that nothing Ms Corby would have said would have assisted the prosecution’s case that Mr T QC was Ms Corby’s barrister or prospective barrister.  Her Honour applied the evidentiary presumptions, but in a relaxed fashion, allowing argument as to whether there was an explanation for the non-testimony of the kind which would render inoperable the presumption:

Continue reading “Jones v Dunkel inferences in disciplinary hearings not bound by the rules of evidence”

Posted on

State Acts’ power to regulate local lawyers’ overseas conduct

In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application to the Western Australian Legal Practice Act, 2003 of the laws relating to the power of state governments to make legislation regulating overseas conduct (i.e. ‘the law of extraterritoriality’).  Her Honour is Deputy President of the State Administrative Tribunal, and a judge of Western Australia’s District Court.  The Tribunal held that the Western Australian parliament had the power to make laws providing for the discipline of Western Australian lawyers who did things overseas which infringed the norms of their Australian peers, and that the parliament had in fact done so.  Her Honour also considered the relevance of compliance with overseas norms, and who has the burden of proving those norms.  This is one to store away for when you read it.  The relevant passage is: Continue reading “State Acts’ power to regulate local lawyers’ overseas conduct”

Posted on

More on the solicitor’s ‘penumbral’ duty of care (or lack of it)

Ever since Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1, the solicitor’s penumbral duty of care, orthodoxy since Hawkins v Clayton (1988) 164 CLR 539, has been looking shaky. The reference to the penumbral duty of care is a reference to the proposition that lawyers may owe duties in tort to take care to avoid foreseeable loss accruing to their clients, even if their retainer (i.e. their contractual obligations to the client) does not require them to do so. The classic example is the solicitor retained to document a transaction which to the solicitor seems improvident.  Can the solicitor document the transaction and stay mum about his concerns?  More to the point, can the stupid solicitor who does not notice what a competent solicitor would notice — that the transaction is manifestly improvident, get away with it by saying ‘Not my problem. Go sue someone you asked to advise on whether you struck a good deal or not.’? The whole question got a thorough going over in Kowalczuk v Accom Finance [2008] NSWCA 343. The decision of Justice of Appeal Campbell, with which Justices of Appeal Hodgson and McColl agreed, said: Continue reading “More on the solicitor’s ‘penumbral’ duty of care (or lack of it)”

Posted on

Conflict of duties and the limited retainer

This is a post about David v David [2009] NSWCA 8 (the decision at first instance is at [2007] NSWSC 855). Karl Suleman has been good to professional negligence lawyers.  He procured other Assyrians to invest in excellent sounding supermarket trolley schemes.  ‘Give me $50,000’, he said to one investor, ‘and shopping trolleys will pay you $1,350 a fortnight for 10 years’.  That is a return of 600%.  Something must not have worked out the way it was supposed to, because the punters lost their dough and Karl went to jail. The punters sued their lawyers, and any other lawyers on the horizon. Continue reading “Conflict of duties and the limited retainer”

Posted on

1518

After a couple of glasses of red wine late one night when everyone else in my household was asleep, I decided I needed this deed written in Latin on vellum in 1518. I pressed the buy button on the screen, and a bit more than a week later, a bit of 16th century Derbyshire was posted to me from St Petersberg, Florida.  It is apparently a grant from William Haae to Thomas Mellour, tanner, and his wife Alice, of lands, tenements, rents and services within the town of Idridgehay.  It is witnessed by Thomas Crane (chaplain), Richard Gaskyn, and Thomas Bywater.  In my internet enquiries into 1518, I discovered that Tom and Alice got some other land the same day (see item 381).

I picked this one because it was from the reign of Henry VIII, and because 1518 is a long time ago and is kind of the cusp of what I regard as the recent past — of my culture at least — beyond which it all starts to blur.  Our calendar had not even been adopted yet, which might I suppose explain why my deed is dated 10 Hen 8th. (Henry was still going gangbusters with his first wife, Catherine of Aragon, part-English but mostly Pyrenean.)  The beginning of the Tudors (e.g. Henry’s dad, Henry and Henry’s three kids who succeeded him as sovereign including the first and penultimate Elizabeth who got Cate Blanchett an Oscar nomination) roughly equates with the end of the Middle Ages, the reformation, and the introduction into Europe of the printing press in 1454. Just before that, the crusades had come to an end when no one could be bothered getting it together to get Constantinople back from the Moslems after it fell in 1453, but the peace of Europe arranged by Cardinal Wolsely in the year of my deed was all about uniting against Islam. Continue reading “1518”

Posted on

Doctors behaving badly

When I found the Royal Australian Society of Professional Discipline (which will have a nice little commission going to whichever dominatrix is willing to pay the most for referrals of callers with the wrong idea), I will open it in the hinterland of the Gold Coast.  That’s a nicer place to be than the Coast itself, which is where a high proportion of Australia’s dodgy professionals are, and hence many of their victims.  I once went to the Coast for a conference. I was attracted to the idea of ripping open the seedy underbelly of the place.  I couldn’t find it.  Anyway, the latest chapter in the disciplining of Coastal professionals is reported here.  A 78 year old doctor prescribed ‘non-conventional’ cancer cures to a lot of people.  The authorities started investigating.  He had himself removed from the register of doctors.  That did not dissuade them.  A trial was held to discipline him.  He did not attend, and sent along as his advocate a friend and former cancer sufferer.  He was told not to apply for permission to practise again for 3 years.  Read on for another 4 reports of doctors behaving badly. Continue reading “Doctors behaving badly”

Posted on

Litigation survival guide

This post aggregates hyperlinks to a series of articles published by an English firm, Wragge & Co, entitled ‘Litigation Survival Guide’.  It piqued my interest for the reasons set out below. Part 1 is ‘Escape to Victory — Points to Consider When Terminating a Contract’. Part 2 is ‘Protecting the Supply Chain’.  Part 3 is ‘Retention of Title: Sellers Beware’.  Part 4 is ‘Winding Up Your Corporate Debtor’. Part 5 is ‘Responding to the Threat of Winding Up’. Part 6 is ‘Regulatory Breaches’.  Part 7 is ‘Think Before you Claim’. Why it’s not part 1 I cannot imagine.  Part 8 is ‘Cost Effective Litigation’.  Part 9 is ‘Privilege — top five Q&As’. Part 10 is ‘A Reminder of the Basic Principles of the “Without Prejudice” Rule and Some Hints and Tips for its Use’. Continue reading “Litigation survival guide”