Who You Gonna Call? Lien Busters

Supreme Court judges are solicitors’ lien busters. They can bust solicitors’ liens using:

1.  (Regardless of whether or not the matter to which the file relates had anything to do with the Supreme Court) their Court’s inherent jurisdiction over its officers including Victorian solicitors, reinforced by s. 76 of the Supreme Court Act, 1986; and

2.  (In relation to Supreme Court proceedings) order 37 rule 1(1) of the Supreme Court Rules.

In Nicholson v Knaggs (No 2) [2009] VSC 187, Justice Vickery adjudicated a dispute over possession of the defendants’ file maintained by their former lawyers. Continue reading “Who You Gonna Call? Lien Busters”

60 days for referring pecuniary loss disputes to VCAT extendable

I was reminded when reading Sibonna Nominees v R Legal [2009] VCAT 893 that the 60 day period after the Bureau de Spank gives a punter a ticket under s. 4.3.7 of the Legal Profession Act, 2004 to enter VCAT for adjudication of an unresolved civil complaint of the species ‘pecuniary loss dispute’ is extendable under s. 126(1) of the VCAT Act, 1998 (‘[VCAT], on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.’)  Well, to be honest, which I’m trying to be more and more, ‘reminded’ is a euphemism.  Anyway, sitting there, just behind s. 127 which I have been skirmishing about in VCAT just this week, lay s. 126.  No doubt I should have known about it, but the reason I did not is interesting.  No one does what Sibonna Nominees was doing any more.  These kind of ‘pecuniary loss disputes’ in the old Legal Profession Tribunal were my bread and butter for a while, when I was a solicitor.  Now, punters generally just go under the Fair Trading Act 1999‘s consumer and trader dispute jurisdiction: s. 107ff. Continue reading “60 days for referring pecuniary loss disputes to VCAT extendable”

Validity of a Bureau de Spanque notice requiring information in relation to a complaint

By far the commonest disciplinary prosecution of lawyers in Victoria is for breach of s. 149 of the Legal Practice Act, 1996 or s. 4.4.11 of the Legal Profession Act, 2004.  The Victorian thing to do is to say:

‘Yep, sorry, I didn’t respond.  I was, like, really stressed at the time and had quite a lot of work on.  It’s not professional misconduct, it’s only unsatisfactory professional conduct. I’ll pay the $1,000 fine. Can we agree on a reasonable sum for costs?’ Continue reading “Validity of a Bureau de Spanque notice requiring information in relation to a complaint”

Confidentiality (-not) of disciplinary determinations

The Times has an article about a solicitor on the Board of the English legal regulator and former president of the Law Society who, rather embarrassingly, had a conflict of interest determination go against him after a disciplinary investigation.  The solicitor acted pro bono for a barrister who was being sued by an Exxon subsidiary.  He acted in an appeal from a Hong Kong court to the Privy Council, which succeeded.  At the time of the appeal, the solicitor’s firm merged, and one of his new partners did some work for another Exxon subsidiary.  The barrister complained later of a conflict of duties.  The complaint was made out. Private Eye got a hold of the adjudication and was preparing to make merry with it when the solicitor applied for an injunction to prevent publication on the basis that it was confidential. That application failed, and so did the solicitor’s appeal. It is easy to say ‘bad, bad move’ with the benefit of hindsight, yet it is a difficult conclusion to escape, since none of the judges seem to have thought much of what I also consider to be an odd argument that a disciplinary adjudication was confidential to the complainant, the solicitor, and the Bureau de Spanque.  Here is the decision of the English Court of Appeal’s Lord Justice Toulson with whom Lords Justice Sullivan and Hughes agreed: Napier v Pressdram Limited [2009] EWHC 39 (QB).

Gambling addiction

Trust monies tempt gamblers.  Sometimes solicitors succumb.  Consider R v. Gabriel W [2006] VSC 397, where $1 million disappeared from a solicitor’s trust account. Justice Teague locked him up, and said in the process:

’16 I have read closely the reports of two psychologists who have examined you. They are Mr Beaton who saw you in 1998, and Mr Newton who saw you in 2006. You told Mr Beaton that you knew that you had to permanently stop the gambling. You told Mr Newton that your gambling did stop in 2001. You also told Mr Newton that all your offences arose out of gambling. You gambled away money belonging to others. More of such money was paid out to try to extricate yourself from the plight in which the gambling had left you. Your addiction to gambling does help to explain why you so wantonly and brazenly disregarded the rights of your clients and of the other victims whom you misled and deceived. It cannot be seen to excuse what you did. At most it can be seen to mildly reduce the importance of the element of general deterrence.’

‘Quis custodiet ipsos custodes?’, the excellent new Melbourne law blog about the criminal law, has a post about R v Grossi [2008] VSCA 51, in which Justice of Appeal Robert Redlich told us what to make of gambling addiction as a sentencing consideration.  I will not reproduce the post — go read it yourself — but I will share with you his Honour’s lowdown (not great news for gambler crims): Continue reading “Gambling addiction”

Termination of a no-win no-fee retainer

Mr Burmingham is the subject of three posts already.  They dealt with three discrete aspects of his case, Maurice B Pty Ltd v Burmingham [2009] VSC 20: a titillating detail, advocates’ immunity, and the nature of the suit for fees.  But his case was really mostly about what happens when a no-win no-fee costs agreement is terminated before the end of the case.  Of course, it all depends on what the costs agreement says, and this costs agreement was presumably the result of many years’ honing by one of Australia’s foremost plaintiff firms.  Justice Byrne was not complimentary of the draftsmen (nor of the court book’s reverse chronological order, a bugbear of my own).  But in the end, the lawyers got their fees even though they did not obtain a successful result for Mr Burmingham. Continue reading “Termination of a no-win no-fee retainer”

The suit for fees

One might imagine the suit for fees to be the simplest legal claim there is.  But there seems to be great confusion about what the elements of the claim are,  what defences are available, and the relationship of the suit with a taxation, or the failure to exercise a right of taxation. If anyone has any contributions to the mysteries referred to below, I would be happy to hear them. Continue reading “The suit for fees”

Statutory powers of compulsion to be invoked reasonably

Justice Pagone considered the Commissioner of Taxation’s invocation of a power to compel the production of documents and information (s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth)). In this case, the subject of the compulsion was the Law Institute, more used to flinging such powers around itself.  Legal regulators not infrequently list poorly formulated allegations drafted by angry laypeople and then requiring ‘a full written response’ from lawyers.   Sometimes, requiring a ‘full written response’ is specifically contemplated by statute (e.g. s. 4.4.11(1)(a) of the Legal Profession Act, 2004, which is about investigating disciplinary complaints) but sometimes it is not (e.g. s. 7.2.7 of the same Act, which relates to investigations of offences against the Act).  If the response is not ‘full’ in the way the regulators think about ‘fullness’, the respondents risk being convicted of the crime of non-cooperation (seriously: see s. 7.2.7(1)).  His Honour cautioned regulators and said they must use such powers ‘wisely and responsibly’: Continue reading “Statutory powers of compulsion to be invoked reasonably”

More on Law Institute records and public interest immunity

I have previously posted about Justice Pagone’s rejection of the Law Institute’s blanket invocation of public interest immunity to excuse production of documents required for production under a statutory power of compulsion available to the Tax Man.  Now his Honour has decided the case based on the kind of specific arguments he considered to be necessary: Law Institute of Victoria Limited v Deputy Commissioner of Taxation (No 2) [2009] VSC 179. The documents sought by the Tax Man were divided into 3 categories:

  • The first were documents about the practice history of the solicitor of interest to the Tax Man, which included copy practising certificates, records of when the solicitor held a practising certificate, and of what kind, and change of address forms.
  • Secondly, the Tax Man sought records of audits of the solicitor’s trust accounts;
  • Thirdly, he sought ‘all records in respect of the cessation of [the solicitor’s] registration as a practising lawyer, including documents stating Mr Kephala’s election not to renew his practising certificate, or notification of his ineligibility, or notification of the requirement for investigations to be conducted before it could be renewed.’

His Honour held that the first and third documents were not protected by public interest immunity, but the second was.  The reasons in relation to the audit documents are set out below.  Some of the documents produced by the Institute contained information to persons other than the solicitor in whom the Tax Man is interested.  His Honour also hinted strongly that a responsible regulator ought to advise them that information relating to them was proposed to be produced to the Tax Man, and that the Institute had not done so.  His Honour contrasted that course with that adopted in Federal Commissioner of Taxation v Coombes (No 2) (1998) 160 ALR 456. Continue reading “More on Law Institute records and public interest immunity”

Weird contribution claims

I have a nascent theory that the introduction of proportionate liability has made people think more about shifting blame, and doing so in more creative ways.  Personal injury claims are not apportionable, though.  The old law of contribution governs personal injury cases. In Tweed Shire Council v Howarth [2009] NSWCA 103, a little girl sued the local council for compensation for injury she suffered when she wandered away from the gaze of her father and fell into a pond. Her dad and her grand-dad were laying turf at the family’s investment property. She sued through a tutor who was not her father, alleging a breach of a duty in the Council to fence off bodies of water within its territory.  The Council sought leave to join the father as what we would call a third party and claim contribution, on the basis that the father breached a duty of care towards his child which also caused the injury. The content of the duty was said to require him to keep his eye on her so she did not wander off and fall into a pond.  The trial judge dismissed the application.  The Court of Appeal (Justice of Appeal Giles with whom Justices of Appeal Ipp and Basten agreed) allowed the Council’s appeal.

Suing the Council is one thing, but prosecuting a suit which requires a determination of your dad’s duty of care to you is another.  Maybe it will all be a bit much for the family, and the thing will get resolved.  I suppose the father will be checking the wording of the general liability cover in any home and contents insurance policy the family might have first though.  Can anyone feel what we Victorians would call a fourth party claim against the grandfather coming on?  And a fifth party claim against the grandmother for losing the grandfather’s spectacles?

Waiver of without prejudice privilege in disciplinary prosecutions of lawyers

It has never been clear to me that anyone was entitled in a disciplinary prosecution to refer to statements made ‘without prejudice’ unless the joint privilege holders (the disputants on whose behalf the communication was made, and made to) waived it.  Now I have found an authority on the question in Legal Practitioners Complaints Committee v David F [2006] WASAT 352, a disciplinary prosecution of a lawyer who allegedly made misleading comments during a negotiation.  Western Australia’s State Administrative Tribunal held that without prejudice statements could be adduced in evidence against him: Continue reading “Waiver of without prejudice privilege in disciplinary prosecutions of lawyers”

House of Lords restates law of negotiation (or ‘without prejudice’) privilege

I reckon Dr Desiatnik is unlucky with the timing of his texts.  The first edition of Legal Professional Privilege in Australia was finished when the High Court changed the test for the privilege from a sole purpose to dominant purpose and restated the law of implied waiver.  I have always shuddered about the story one of my law lecturers recounted of a Canadian academic who devoted a decade to a text on death taxes only to see the parliament abolish them on the eve of the launch.  I hope the story is apocryphal.  This time around, Dr Desiatnik — a lovely man with a quirkily old fashioned text writing style — has finished a whole book devoted to negotiation privilege, which is about to be published, and the House of Lords has come along and put out a major judgment on the subject.  Fortunately, Ofolue v Bossert [2009] UKHL 16 does not seem to revolutionise the law. Here is The Times‘s account of the decision.

Rehabilatory orders as professional discipline disposition

In Victoria last year, a deal was struck between the Law Institute and a solicitor whose practising certificate it had cancelled.  A retired solicitor was appointed as a mentor to the solicitor, who was allowed to return to practice subject to the Legal Practice Board’s supervision through the retired solicitor’s agency.  Bitter litigation was brought to an end.  There was a precedent: Legal Services Commissioner v BH [2008] VCAT 686.  And it is not unlikely that that precedent was borne out of important guidance issued by the Court of Appeal in PJQ v Law Institute of Victoria [2007] VSCA 122 per President Maxwell with whom Justices of Appeal Chernov and Nettle agreed:

’31 Critically for present purposes, however, the Tribunal’s protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

32 In my opinion, the Tribunal was here faced with just such a choice. Counsel for [Mr Q] had offered the Tribunal an undertaking to have his bills of costs independently assessed. This undertaking was offered apparently without limit of duration. As Buchanan JA and I said when granting a stay of the suspension, the imposition of a continuing obligation of that kind would seem likely to afford considerably greater protection to the public than a period of suspension, unaccompanied by any requirement of training or further education, followed by a resumption of unsupervised practice. Put simply, compliance with the undertaking would ensure that there was no recurrence of the overcharging which occurred here.

33 As I have mentioned, the Tribunal’s otherwise careful reasons for decision make no mention of the proffered undertaking. The Tribunal said that it had considered other options short of suspension but in my view, because of the long-term protection which the undertaking offered the public, that course required separate consideration and evaluation.’

The Bureaux de Spanque Medicales are much better than their legal equivalents at fashioning these kinds of orders (but then there is a dearth of experienced doctors while there is a glut of lawyers, so necessity is the mother of invention).  Anyway, the Queenslanders are onto it.  In Legal Services Commissioner v MPD [2009] LPT 08, the Bureau de Spanque Tropicale heard charges against a solicitor for breach of the rule in Browne v Dunne, and several trust account irregularities which involved no dishonesty.  The solicitor pleaded guilty, and everyone involved thought these lovely orders to be most appropriate: Continue reading “Rehabilatory orders as professional discipline disposition”

Solicitor prosecuted for breach of rule in Browne v Dunne

Bizarre man.  A Queensland solicitor has been found guilty of professional misconduct for not obeying the rule in Browne v Dunne (well, amongst other things): Legal Services Commissioner v MPD [2009] LPT 08. Here are the reasons:

‘[18] in July 2004, [Mr Dryland] retained the respondent to resist an application for an apprehended violence order.  [19] Mr Dryland’s case involved a denial of the incident of violence alleged against him.  [20] During the hearing, the respondent, who acted as advocate, failed to put his client’s case when cross-examining.  [21] The Court made an apprehended violence order against Mr Dryland.  [22] It is not alleged that there was a connection between a failure to comply with the rule of practice in Browne v Dunn (1893) 6 R 67 and the outcome of the hearing. Rather, the undisputed case is merely that there was a failure to cross-examine appropriately.’

Advocates’ immunity is a defence to intentional torts

Leerdam v Noori [2009] NSWCA 90 is authority for the proposition that the kind of conduct immunised from suit by advocates’ immunity includes intentional conduct (see [145]), though it is not a defence to  actions for the tort of malicious prosecution (see [146] citing McHugh J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [99]).  Certain intentional torts, however, focus on the putative tortfeasor’s conduct in commencing, rather than prosecuting, proceedings.  The immunity is no defence against this kind of claim, because the impugned conduct does not come within the ‘intimately connected’ test which seems to be assumed to have some ongoing utility post-D’Orta-Ekenaike’s Case.  In this case, Mr Noori sued the Immigration Minister and his solicitors and their employee who handled the matter.  The solicitors were sued for misfeasance in public office and collateral abuse of process.  The Court of Appeal held that the claims should have been summarily dismissed for reasons other than the immunity defence they relied on.  Nevertheless, the Court considered the position of the immunity defence, holding that the application of the law of advocate’s immunity to the torts of misfeasance in public office and collateral abuse of process is sufficiently uncertain as to tell against summary disposition by reference to the defence.  On this point, Justice of Appeal Macfarlan stated the Court’s position.  Chief Justice Spigelman and President Allsop agreed.  His Honour said: Continue reading “Advocates’ immunity is a defence to intentional torts”

Another case about one of Schapelle Corby’s lawyers

I have previously expressed my disquiet about the Western Australian QC who told the Australian media that Schapelle Corby’s lawyers were trying to bribe the judges hearing her case.  It seems the Bureau de Spanque de l’Australie de l’Ouest had in fact got right onto it, initiating an own motion investigation. The resultant prosecution has only just now, almost four years later, ground to a successful halt, with a 60,000 word decision crafted by WA’s State Administrative Tribunal over the six months during which the decision was reserved.  The case is Legal Practitioners Complaints Committee v Mark T QC [2009] WASAT 42. The QC does not come out of it well. Continue reading “Another case about one of Schapelle Corby’s lawyers”

When will a company be permitted to litigate without legal representation?

Update, 24 February 2010: An appeal failed: [2010] VSCA 17.

Original post: Rule 1.17(1) of the Supreme Court Rules (the County Court’s and Magistrates’ Court’s rules are to similar effect) reads as follows:

“Except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor.”

In Worldwide Enterprises Pty Ltd v Silberman [2009] VSC 165, Justice Forrest considered an application by a solicitor for a stay of his unrepresented former client’s case against him unless the former client, which was a company, appointed lawyers to act for it.  The proceeding was an appeal to the Supreme Court from a decision of VCAT’s Legal Practice List, where Mr Goodman had represented himself (see [2008] VCAT 683, [2008] VCAT 836, and [2008] VCAT 1345). The application succeeded. On the law, his Honour said: Continue reading “When will a company be permitted to litigate without legal representation?”

Briginshaw and the uniform evidence law

Qantas Airways Limited v Gama [2008] FCAFC 69 discusses the interrelationship of the uniform evidence legislation and the High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336.  The relevant bit is in the separate decision of Justice Branson, with whom Justices French (now of the High Court) and Jacobsen agreed at [110].  Briginshaw informs the interpretation of s. 140.  There is detailed explanation of how the three factors which must be taken into consideration in applying s. 140 work in practice.  The case considered allegations that Qantas engaged in racial discrimination against one of its workers.  A useful point clearly made by the decision is that Briginshaw is relevant to allegations, not to causes of action.  So it is only the inherently unlikely and/or very serious allegation which attracts more careful scrutiny.  Other factual allegations which must be proved to establish the cause of action attract only routine scrutiny. Continue reading “Briginshaw and the uniform evidence law”