I have defended more than one lawyer whose client said the lawyer had failed to advise him properly as to the consequences of a guilty plea. There are many more gradations of disposition of criminal prosecutions than I had realised, and ‘without conviction’ does not mean that society forgets the transgression ever after for all purposes. I seem to recall that even pending charges appeared on the Police’s LEAP database, which generates criminal record checks. Victoria has no spent convictions legislation, unlike the other states and territories other than South Australia, but the situation is not quite so simple as that statement makes it sound, since there are certain practical non-legislative impediments to obtaining criminal record checks which go back too far. Here is a link to a Melbourne University Law Review article which seems to contain a wealth of up to date scholarship on the consequences of various dispositions of criminal proceedings. The authors are Brownyn Naylor, Associate Professor Moira Paterson, and Professor Marilyn Pittard.
Professionals’ duties of care to subsequent purchasers of commercial buildings
My fellow barrister Andrew Kincaid has written a useful summary of that thorny part of the law of negligence which regulates in what circumstances builders owe a duty to people who buy buildings from the original owner to avoid them suffering pure economic loss when a latent defect becomes patent. Although we (or I at any rate) usually think about this problem in terms of builders, Andrew points out for readers of this blog that President Maxwell’s decision in Moorabool Shire Council v Taitapanui [2006] VSCA 30 suggests at [24] that desk-workers like engineers and designers might also owe these kinds of duties. Here it is: Continue reading “Professionals’ duties of care to subsequent purchasers of commercial buildings”
Costs do not always follow the event
Generally, costs of a proceeding follow the event in the sense that the winner at trial is entitled to an order that the losing party pay its costs, calculated on a party-party basis. That the loser is poor, or only just lost, or lost on a technicality, is usually irrelevant. In Jones v Apps (No 2) [2009] VSC 366, however, the defendant’s unmeritorious conduct which led to the litigation which he won and sought the costs of, and the devastating financial losses suffered by the plaintiff, an ingenue, with which the defendant was associated (though not found legally liable for), were sufficient in combination to displace the usual order, with the result that in the exercise of his discretion in relation to costs, Justice Hansen ordered that neither party be liable to pay the other party’s costs. It is an exceptional case, but it is a useful reminder of the Court’s absolute discretion in relation to costs, regardless of how settled the application of the discretion often appears to be.
In relation to the discretion, see Supreme Court Act, 1986 (Vic.) s 24(1). In Latoudis v Casey (1990) 170 CLR 534, Justice Dawson described the discretion as ‘unqualified’, Justice McHugh J described it as ‘uncontrolled’, and Chief Justice Mason described it as ‘unconfined’. That may be so, but it is a discretion the unqualified exercise of which must be exercised judicially: Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137; (2001) LGERA 439 at 447 per Justice of Appeal Stein. See also Dal Pont’s Law of Costs (2008) pp 160ff from which these authorities are taken.
New national lawyer regulation working group website up
Australia’s National Legal Profession Reform Project has a website up and running.
New complaints system for English solicitors
English firm Weightmans has a little article about the newly formed Office for Legal Complaints‘s first discussion paper about the Ombudsman scheme the OLC proposes to establish by 2010.
Latest on expert evidence in professional negligence cases
A barrister is being sued for negligence in the NSW Supreme Court. The plaintiff sought to tender an expert report of a senior counsel to the effect that a barrister of ordinary competence would have appreciated from the start that the case he had run on behalf of the plaintiff had been hopeless. Mid-trial, the Court refused the tender of the report, and refused an application to tender a varied report with a view to curing the defects which prevented the tender of the original
The Court found that the witness, having 32 years’ practice in the relevant fields probably was qualified to give evidence about what competent lawyers would do in various situations in his fields of practice, even though the evidence of that competence had not been properly set out. At issue was a dispute arising from a conveyance, so there was a large body of practice to assess. Justice Brereton doubted the wisdom of the drafting of the report (‘In the circumstances faced by [the barrister]’, a careful and competent professional would have acted …), but found that this was not one of the numerous cases where the failure to articulate exactly what those circumstances were understood to be rendered the report bad.
By the time the barrister’s conduct fell to be considered, the case the expert said the defendant barrister should have appreciated to have been hopeless had gone against the barrister’s client. What rendered the report inadmissible was ex post facto reasoning backwards from the adverse judgment, an ambiguity in the report, and a lack of articulated reasoning (the two key paragraphs from the judgment are reproduced below). The report was nothing but assertion — just an ipse dixit. The decision is Lucantonio v Klein [2009] NSWSC 853. Justice Brereton summarised the relevant principles helpfully:
Continue reading “Latest on expert evidence in professional negligence cases”
Conflict applications to restrain opposing solicitors from acting not interlocutory
In Legal Practice Board v Lashanky [2008] WASC 294, the Supreme Court of Western Australia’s Justice Chambers said that applications to restrain solicitors from acting are not interlocutory applications, so that affidavit evidence may not be given from information and belief (i.e. the hearsay prohibition is not relaxed as it is for interlocutory applications):
’29 Under O 37 r 6(2) of the Rules of the Supreme Court 1971 (WA), an affidavit used for the purposes of interlocutory proceedings may contain statements of information and belief. However, an application to restrain a solicitor from acting is not an interlocutory proceeding. Continue reading “Conflict applications to restrain opposing solicitors from acting not interlocutory”
The consequences of substituting lawyers responsible for client matters
My experience of working in and representing big firms is that they consider they have an entitlement to swap lawyers in and out of files, even if that involves the loss of accumulated knowledge and a need to spend time on (and therefore charge fees for) the newbie coming up to speed. One of the things solicitors whose retainers are governed by the Legal Practice Act, 1996 are required to disclose before, or as soon as reasonably practicable after, being retained, is the name of the person who will be principally responsible for the matter (s. 86(3)(a)). Under the Legal Profession Act, 2004 there is no such requirement, but I often see disclosures and costs agreements which specify who is going to work on a matter, and at what rate. In Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 1552 (TCC), the Queen’s Bench Division of the English High Court considered an alleged breach of a promise in a professional services contract that a certain person would work on an engagement. I will link to CMS Cameron McKenna’s excellent Law Now service’s helpful case note rather than reinventing the wheel.
Offences created by the Legal Profession Act, 2004
Note: I drafted this post last financial year. Since then, the value of a penalty unit increased today by about 3%, to $116.82, with the result that the dollar figures referred to below will be commensurately too low. See the details at Quis Custodiet Ipsos Custodes.
Original post: I acted for a fellow whom the Law Institute as delegate of the Legal Services Board was purporting to investigate, and noticed for the first time what a rich repository of crimes is the Legal Profession Act, 2004. Two are punishable by imprisonment of up to 5 years or more: s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and s. 5.5.15 (interfering with property to defeat a receivership of a law practice). A third, s. 2.2.2(1) (unqualified practice) is punishable by up to 2 years’ imprisonment respectively. Eight are punishable by fines of up to about $27,000, about 25 by fines of up to about $13,500, about 57 by fines of up to about $7,000, and another 14 by fines of between up to about $500 and about $2,500. That’s over 100 crimes. As far as I know, the only conviction is likely to have been under s. 3.3.21.
All of the offences punishable only by fines are summary offences: 600 penalty units (a fine of about $68,000) and imprisonment for up to 5 years being the level of seriousness which brings offences into the indictable category: see s. 112 read with s. 109 of the Sentencing Act, 1991. So s. 3.3.21(1) (having or causing a trust account deficiency or failing to pay trust money) and 5.5.15 (interfering with property to defeat a receivership of a law practice) appear to be the only indictable offences created by the Act. They may be prosecuted at any time, while all those punishable by fines, and unqualified practice, are summary offences which may generally be prosecuted only within 12 months after the allegedly criminal conduct occurred, by virtue of s. 26(4) of the Magistrates’ Court Act. Do not allow an investigator under the Legal Profession Act, 2004 to investigate a summary offence if the conduct allegedly occurred more than a year beforehand! (Whether the Legal Services Commissioner may entertain a disciplinary complaint more than a year after the relevant conduct is a more difficult question. See this post.)
I really wonder about the social utility of having all those crimes there. Continue reading “Offences created by the Legal Profession Act, 2004”
Double jeopardy and disciplinary proceedings
Coke-Wallis v Institute of Chartered Accountants In England and Wales [2009] EWCA Civ 730 considered the application of principles of res judicata and autrefois acquit (the criminal version of the same principle, an aspect of double jeopardy) to disciplinary ‘prosecutions’. It did so in the context of the disciplining of accountants. The relevant scheme made a conviction conclusive evidence of an act likely to bring the accountant, and the profession, into disrepute. The conviction itself, and the conduct of which it was conclusive evidence were each able to justify disciplinary sanction. Mr Coke-Wallis was convicted of a crime but the disciplinary prosecution brought on that basis failed unexpectedly. So the regulator charged him again, by reference to the conduct which was the subject of the conviction. The English Court of Appeal held that the principles of res judicata, or autrefois acquit (which it seemed to assume applied to disciplinary proceedings) were not infringed, because the two charges were separate and distinct. That left open the question that though there was no legal bar to the second prosecution, nevertheless it constituted an abuse of process. After analysis, no abuse was found. English solicitors Shepherd + Wedderburn have kindly prepared a little case note. Justice Gillard’s decision on a similar problem in Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 is the subject of this post.
The Institute does not always seem to get everything perfect. Take for example, the Queen’s Bench Division’s description of another prosecution, in Gorlov, R (on the application of) v The Institute Of Chartered Accountants In England And Wales [2001] EWHC Admin 220, justifying an exceptional award of costs against a professional disciplinarian: Continue reading “Double jeopardy and disciplinary proceedings”
Procedure in applications to set aside costs agreements
It costs about $290 to file an application to set aside a costs agreement under s. 3.4.32 of the Legal Profession Act, 2004 in VCAT. It is not a step lightly to be taken. Moreso than much of what goes on in VCAT, such applications are treated like litigation in a court. Costs will be awarded against the unsuccessful party much more often than in other kinds of proceedings in VCAT; indeed, it is more or less true that costs follow the event, that is, the loser generally has to pay the winner’s costs calculated according to an appropriate County Court scale. See the page on VCAT’s website about these kinds of applications, which includes the correct form for initiating these kinds of proceedings.
Following filing, VCAT generally sets down a directions hearing of its own motion. There is a standard form of orders which is often made. They are reproduced below. To avoid a directions hearing, applicants would be well-advised to include the details (‘particulars’ in legal lingo) the usual orders require in the application itself. The applicant should then ask the respondent whether it will consent to doing what the usual orders generally require within, say, 2 weeks. Alternatively, if that was not done at the outset, the parties might consider submitting the orders they would each be happy with (‘a minute of consent orders’ in legal lingo) in the terms of the usual orders to VCAT in advance, saving the need for a trip to VCAT if the decision maker who would otherwise preside at the directions hearing is content to make the orders on the papers. Of course, a directions hearing may be necessary anyway. Directions made at directions hearings are not necessarily limited to those found in the usual orders. Nor are the usual orders always made.
The usual orders are:
Continue reading “Procedure in applications to set aside costs agreements”
VCAT explores definition of professional misconduct at common law unconnected with legal practice
In Legal Services Commissioner v RAP [2009] VCAT 1200, the Bureau failed to establish a charge of professional misconduct at common law against a solicitor in respect of conduct which occurred otherwise than in the course of, and unconnected with, legal practice. (Another charge, not the subject of this post, succeeded.) The allegation was that he:
‘deliberately misled a person with whom he had entered into a commercial transaction, thereby behaving in a manner that would reasonably be regarded as disgraceful or dishonourable by fellow practitioners of good repute and competency’.
The solicitor had negotiated in late 2005 with a car dealer for the purchase of a $1.4 million [sic.] car. Continue reading “VCAT explores definition of professional misconduct at common law unconnected with legal practice”
Commissioner’s unexplained delay reduces penalty for serious misconduct
Speaking of the need for speed as Justice Heydon and I were on this blog yesterday, there are two other instances worthy of reporting.
First, the High Court has recently considered the need for speed in criminal proceedings, and were not nearly as excited about it as in commercial litigation. This time, they rolled the court below for saying that enough delay was enough and staying a criminal prosecution that had hung around for too long, resulting in the loss of exculpatory evidence. The decision in R v Edwards [2009] HCA 20 might have application by analogy in disciplinary cases. It is blogged about at Quis Custodiet Ipsos Custodes, and there is a short note in the latest Law Institute Journal.
Secondly, delay by the Legal Services Commissioner has had a consequence in a serious disciplinary prosecution. Parliament requires the Bureau de Spank to conduct their investigations ‘as expeditiously as possible’, and to give the complainant progress reports at least 6 monthly: s. 4.4.12, Legal Profession Act, 2004. If the Commissioner complies with these injunctions, the degree of expedition which is possible is not always great. In fact, sometimes the rate at which investigations progress is astonishing. So glacial can progress be that the possibility that climate change sceptics might actually have some kernel of truth buried away beneath all of their hot air (-not) begins to nag at you. There is a letter in the latest Law Institute Journal complaining about the Commissioner’s April 2009 response to a solicitor’s September 2008 letter (August 2009, p. 10).
An unexplained period of apparent inactivity of 18 months was taken into account in favour of the lawyer prosecuted for misconduct in Legal Services Commissioner v ER [2009] VCAT 1445. This is a factor which might be brought to bear in many a plea in a disciplinary prosecution. What Judge Ross’s tribunal said on this issue is: Continue reading “Commissioner’s unexplained delay reduces penalty for serious misconduct”
Litigation takes speed
Adjournment applications and applications to amend out of time in civil proceedings just got more difficult. I have a feeling that the first time I said anything in court after I came to the Bar was an expression, to the Supreme Court’s Master Efthim, of how melancholy I felt about regrettably having little choice but to — ahem — respectfully submit that in all the circumstances, the only fair thing to do was to adjourn the following day’s trial of a commercial matter. Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 was what got me my first victory as counsel, even if I did join the elite club (or possibly even achieve a unique status in the history of the Victorian Bar) of suffering an order for solicitor-client costs against my client on my first appearance. It was an excellent introduction to my new reality of having to be the frontman in other people’s cases on short notice.
I knew Queensland’s Case (I could not resist) did not say exactly what many people lazily believed it to say. But the plurality (Justices Dawson, Gaudron and McHugh) did say:
‘Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.‘
I knew it could not last. In fact my reaction to Justice Kiefel’s appointment to the Highkers was to note to myself that her Honour was the no-nonsense trial judge who had refused the adjournment in Queensland’s Case only to be rolled on appeal. I figured she would be plotting her revenge against that rare indignity. Sure enough, in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 a plurality of Justices Gummow, Hayne, Crennan, Kiefel and Bell today shredded Queensland’s Case, excoriated four ACT Supreme Court judges‘ toleration of a radical amendment at trial which caused it to go off for months, threw a grenade full of speed and a bucketfull of steroids into litigation, especially commercial litigation, and implicitly gave Justice Finkelstein permission to look towards a uranium enriched rocket docket. Justice Heydon and Chief Justice French were so excited about the need for speed that they weighed in with separate concurring decisions. This is the penultimate, swingeing, paragraph in the decision (from Justice Heydon’s reasons):
‘The presentation and adjudication of the case in the courts below do cause it to merit a place in the precedent books. The reasons for placing it there turn on the numerous examples it affords of how litigation should not be conducted or dealt with. The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.’
Sex offence doctor’s VCAT success stayed pending appeal
The Herald Sun has been active recently with front page excoriation of VCAT’s professional regulatory review jurisdiction for letting loose on the public again those they have described in unusually large letters as ‘sex fiends’ and ‘insane killers‘. The two decisions are SL v Medical Practitioners Board of Victoria [2008] VCAT 2077, a decision of Judge Ross’s tribunal, and XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy President Macnamara. Given that the psychiatric evidence about the taxi driver was ’emphatically favourable’, the homicide occurred 18 years ago, and the taxi driver, whose son has leukemia and needs flexible work, has led an apparently blameless and psychiatrically acceptable life since, the Hun was a bit harsh. It surely cannot be right to call a man who committed a homicide two decades ago in the grip of a psychosis from which he has recovered an ‘insane killer’ in such a way as to refer to the present.
The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT. Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.
Continue reading “Sex offence doctor’s VCAT success stayed pending appeal”
Latest lawyers’ liability newsletter from Reynolds Porter Chamberlain
Here it is. The abstract of the article of greatest interest is as follows:
‘When he delivered his judgment in Pritchard Joyce & Hinds v Batcup [2008] EWHC 20 (QB) Underhill J said that he had striven to avoid hindsight and had reminded himself that the central issue he had to decide was whether any reasonably competent barrister would have given the advice that it was alleged should have been given by S and B (leading and junior counsel), not what he himself, or indeed, any other particular barrister in S and B’s position, might have advised. He found that S and B had been negligent in failing to advise their clients of the time limit applicable to a potential claim against their former solicitors Wellers.’