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Latest on privilege of loss assessors’ reports

Update: What do you know! Here’s another one, hot off the press of the Supreme Court of Queensland: Charleville RSL Memorial Club Inc v Sheapalm Pty Ltd [2009] QSC 193.

Original post: What insurers do when they get a public liability claim is hire a loss assessor to find out the facts,  hopefully get to the witnesses before anyone else does, and put the insured under surveillance before they get lawyers to warn them of the tricks of insurers’ lawyers.  It is a rare form of institutionalised use of non-lawyers where that is sensible, insurers being in some ways the most sophisticated purchasers of legal services (which is why the insurance wings of large firms, less profitable by virtue of clever bargaining by insurers, split off and become boutique insurance law firms).  So a hoary old chestnut is whether the report generated by the loss adjuster’s retainer is covered by legal professional privilege, and whether it makes any (and if so what) difference if the insurer uses a stooge solicitor to effect the retainer.  Long the leading case on legal professional privilege, Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 was in fact more or less such a case.

Harden Shire Council v Curtis [2009] NSWCA 179 is worth tucking away for several reasons. First, it is obviously a case of unusually high authority on this particular question. Second, none of the loss assessor reports authorities are considered, so this decision will not turn up in regular research which takes as its starting point earlier authorities on point.  Third, it was decided under the Evidence Act, 1995 (NSW) an analogue of the soon to commence Evidence Act, 2008 (Vic) which we Victorians are going to have to get used to.  Fourth, it’s short, and so capable of being handed up usefully as clear authority for a number of propositions, including that: Continue reading “Latest on privilege of loss assessors’ reports”

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Release from implied undertaking for information relevant to criminal investigation

In Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd [No 2] [2009] WASC 207, Justice Beech released a party to litigation from the Harman v Home Office implied undertaking not to use documents obtained under the compulsions which are an incident of litigation for a purpose other than the litigation.  His Honour did so to the extent necessary to allow the provision to the Police of answers to interrogatories administered by the party.  His Honour formed the view that the answers would be useful in a forgery investigation being carried on by the fraud squad into a person other than the party interrogated, and in balancing the scales between limiting the invasion of privacy occasioned by litigation and punishing crime, the balance was in favour of the latter.  His Honour summarised the principles in deciding whether to grant an application for release from the undertaking in order to provide information obtained in litigation to the police or other investigative authorities as follows:

Continue reading “Release from implied undertaking for information relevant to criminal investigation”

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Another remedial disposition of a disciplinary hearing

A solicitor was found guilty of professional misconduct in early 2006 for failing to respond to the Commissioner.  Then he was found guilty again for a similar thing in December last year and fined $1,500.  And then again just recently, by Senior Member Preuss, a decision maker who seems new to the Legal Practice List: Legal Services Commissioner v RJ [2009] VCAT 1130.  At the most recent hearing on 1 June, the solicitor still had not provided a response to the complaint in issue in the December 2008 hearing.  The complaint in issue in the most recent hearing, to that point unresponded to by the solicitor, was lodged 20 months ago, and related to alleged delays in the administration of a deceased estate, a matter of interest to the Commissioner. Que faire? Senior Member Preuss decided against a further fine, and instead exercised the power given to her under s. 4.4.19(i) of the Legal Profession Act, 2004, which says:

‘The Tribunal may make the following orders: … (i) an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a specified person.’

There is a trend emerging.  See this previous post.  But since the 1 June 2009 decision, the solicitor has been back before a differently constituted Tribunal in relation to his non-compliance with the order made in December last year, at which a different advocate appeared for the Commissioner.  Vice-President Ross fined the solicitor $750: Legal Services Commissioner v RJ [2009] VCAT 1080.  What Senior Member Preuss said in June 2009 was: Continue reading “Another remedial disposition of a disciplinary hearing”

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Useful stuff from Dr Manhattan

Melbourne lawyer Dr Manhattan writes Quis Quistodiet Ipsos Custodes.  The Doctor has been generating useful stuff recently.  See ‘English Reports Available Online‘, which tells you how to find the English Reports up until 1873 online, ‘New Evidence Text Released‘, which has links to numerous resources on the uniform evidence legislation set to become law in Victoria soon, ‘UK Supreme Court to Start On Time‘ about the Supreme Court which the Doctor says is going to replace the House of Lords, and ‘Served by Mail‘, about s. 160 of the Evidence Act, 2008.

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Juries in civil cases

When I was called up for jury duty and picked as a juror, I was surprised to learn of the existence of juries of 6 in civil cases. That was of course before I was a lawyer.  Mine was a personal injuries case about an alleged back injury, but it settled, robbing me for at least a long time of my opportunity to participate in the third great arm of government.

Gunns Ltd v Marr is an extraordinary proceeding unfolding itself slowly in the Supreme Court.  The environmentalist defendants sought trial by jury.  Justice Forrest (ho ho) said — No, too complicated, and too long a trial: Gunns Ltd v Marr (No. 5) [2009] VSC 284. I knew that civil juries are common in personal injuries and defamation cases, but I must confess I remained until just now unaware that either party has a right to specify trial by jury of any claim founded in contract or in tort.  That means professional negligence claims against anyone, not just doctors, could at the election of one or other party presumptively be heard by a jury.  So too could an application for relief against an oppressive costs agreement or a lawyer’s suit for fees.

Here is his Honour’s handy summary of the law on civil juries in the Supreme Court: Continue reading “Juries in civil cases”

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Legal Aid’s refusal to accept late application for panel quashed

Victoria Legal Aid has a panel of solicitors to whom it refers indictable criminal matters.  A firm of solicitors had been on it for a while, then missed a deadline for applications for renewal. VLA had emailed the firm’s general email address, and the inexperienced receptionist (or former receptionist, for all I know…) had neglected to pass the emails on.  The firm applied to the Supreme Court for judicial review, and won, achieving the quashing of the decision not to reappoint the firm to the panel.  See Lewenberg & Lewenberg v Victoria Legal Aid [2009] VSC 288.

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Western Suburbs Law Association

Last night, I gave a talk to the Western Suburbs Law Association about how to respond to a Legal Services Commissioner complaint. I got a chance to meet some of the lawyers I most admire, met some impressive new people including the Law Institute’s in-house Ethics Manager, Donna Adams, caught up with some old friends, and generally enjoyed myself.

To all those solicitors reading my blog for the first time, a warm welcome. I realised that I forgot to answer one part of a multi-part question, and so will do so now. It was how to find quality blogs. In terms of blogs about the bit of the law this blog is interested in, have a look at the ‘blogroll’ by scrolling down to near the bottom of the right hand column of this blog’s homepage. See also this post and this one and this one on this blog. Each of the blogs referred to will have its own ‘blogroll’ or something similar, and that is the best way of exploring blogs. There is also a search engine devoted to blogs: blogsearch.google.com.

To my other readers, a word of explanation about the password protected post. I have not decided what to do with the 10,000-or-so-word behemoth. Because I finished the paper a few minutes before I needed to hop in a cab to get to Footscray to talk about it, I published it on the blog and gave the attendees the password.  If you did not attend, you do not know the password; there is no password which email subscribers have forgotten and no password associated with the blog in general.  If I do unpassword it, I will only do so after refining it a bit and fixing the errors of expression which no doubt remain to be edited. If you are presently the subject of a conduct complaint and are desperate to read the paper, contact me by email.

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How to deal with a Legal Services Commissioner complaint

In the 2007-08 financial year, the Legal Services Commissioner (aka the Bureau de Spank on this blog) received 2033 complaints (801 civil complaints, and 1584 disciplinary complaints).  That’s one for every 7 of the 13,837 lawyers who worked in Victoria as at the end of March 2008.  17% of them were characterised as mixed civil and disciplinary complaints.  One in 12 complaints was referred to the Law Institute for investigation.  Comparatively few prosecutions were brought.  In fact in only 1 in 25 complaints was the trigger for a prosecution arrived at, and a small fraction of those were or will be prosecuted.  Only 32 reprimands or cautions were issued by the Commissioner.  I take all this from the latest annual reports of the Commissioner (see my posts on the two previous annual reports here and here) and the Legal Service Board.  It makes me realise that mine is a skewed perspective, and that solicitors hire barristers to represent them in the complaints which are more complicated, more serious, or more anxiety-provoking.  Accordingly, much of what follows must be taken as advice in relation to the more serious end of the complaints spectrum.

Most of my clients want to avoid, above everything else, prosecution in VCAT.  Fair enough too.  All other outcomes remain hidden from public scrutiny.  Successfully defending a prosecution is a hollow victory: the allegations against you still get published in the reasons on Austlii, and the prospect of a costs order in your favour is virtually nil: Clause 46D, Schedule 1, Victorian Civil & Administrative Tribunal Act 1998.  It is the lawyers who do not do a good job of responding to the complaint who get prosecuted, rather than those who do the worst things. There is of course a limit to that proposition: do something bad enough (especially in relation to trust accounts) and you will be prosecuted, assuming that the Commissioner thinks she can prove it, regardless of how cooperative you are in the investigation.  The Commissioner has recently published guidelines in relation to her prosecutorial discretion: here and here.  Some of the factors she considers are:

  • whether the practitioner acknowledges his or her error and/or has shown remorse;
  • whether the practitioner made a mistake and is unlikely to repeat the conduct;
  • whether the practitioner cooperated during the investigation;
  • whether a guilty finding may entitle the complainant or others who may have been adversely affected to compensation.

Not doing a good job during the investigation phase manifests in two ways:

  • failing to take legitimate and forensically useful technical points; and
  • (where there are none) failing to realise that demonstrating a current understanding of the relevant law, admitting the error, expressing contrition, and taking the rap is always a better policy than being uncooperative.

Continue reading “How to deal with a Legal Services Commissioner complaint”

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AR Conolly & Company’s Benchmark digest

To blog, you have to be able to write, type, and learn a new programme (WordPress in my case) but there is really only one trick to blogging, and that is finding what to write about efficiently.  I rely on various sources, most of which I will keep under my hat, but the best is a daily email put out for free by a Sydney specialist insurance litigation firm, AR Conolly & Company, titled ‘Benchmark’.  Someone there reads or scans a lot of cases, and digests them usefully, adding to the court-provided keyword headnote, providing hyperlinks to the Austlii versions of the decisions, and, where appropriate, to related decisions such as, in the case of appeals, the decision at first instance. Continue reading “AR Conolly & Company’s Benchmark digest”

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Inferences from non-response to assertions in correspondence received by you

I have never before seen written down any law which explains what use may be made of the fact that you sent a letter to someone containing allegations which are not denied by a letter in response.  It is quite common to see lawyers’ letters which say ‘We note for the record that we do not accept the accuracy of your version of what I said to you in our telephone conversation’, which makes good common sense, and there is in fact some law on the point.  In C B and M Design Solutions Pty Ltd v Pumptech Tasmania Pty Ltd [2007] TASSC 103, Justice Crawford said:

‘[11] Statements made to a party in correspondence may be evidence against that party of the truth of the matters stated, if by that party’s answer or silence it acquiesced in their contents. Whiting v Whiting [1947] SASR 363. A failure to dispute or challenge matters of fact asserted in correspondence received, may amount to an admission of the accuracy of those matters. Whether it does or not will depend on the circumstances, including the conduct of the parties before and after the date of the correspondence in question. Wiedemann v Walpole [1891] 2 QB 534. If a reply could reasonably have been expected if the matters of fact were inaccurate, and no reply was forthcoming, then it may amount to an admission. Young v Tibbits (1912) 14 CLR 114.’