University of Western Australia v Gray (No 25) [2009] FCA 1227 is a horror story. Gray won and Justice French ordered the University to pay his costs. It was a big case. But the University contended that to the extent that Gray’s lawyers had not placed themselves on the roll of practitioners maintained by the Federal Court, Gray could not recover from the University party-party costs of those lawyers. Perth’s Justice Barker decided that the University did not have to pay those costs, by reference to ss. 55A, s 55B and s 55C of the Judiciary Act, 1903. That was so despite the fact that Gray had already paid his lawyers’ fees. The consolation prize was that the relevant lawyers’ work, or some of it, could be assessed on a party-party basis at the rates allowable for managing clerks. But Justice Barker noted that the scale allowance for solicitors’ time was 4.5 times the allowance for clerks’ time. The thing is, you see, when you get admitted and sign the roll of your Supreme Court, you do not automatically become enrolled on the rolls maintained by federal courts. My employer at the time of admission was diligent enough to get me to go and sign the federal rolls at (from memory) the Melbourne Registry of the High Court, immediately after admission.
Misuse of statutory demand yields costs against solicitor personally
Gippreal Pty Ltd v Kurek Investments [2009] VSC 344 is yet another decision of Justice Pagone of interest to this blog. I appreciate His Honour’s concision. In this case, a creditor served a statutory demand knowing full well that there was an offsetting claim for more than the debt the subject of the demand. The creditor’s solicitor knew too, and Justice Pagone ordered that the costs of the successful application to set aside the demand be paid by the solicitor personally. The offsetting claim was a formal one, being:
‘a claim in pending proceedings which had been issued in this Court in a statement of claim signed by senior counsel. Rule 13.01 requires pleadings settled by counsel to be signed and that requirement is not a mere formality. The signature by counsel of a pleading has been described as a voucher that the case is not a mere fiction[4] and reflects the duties imposed upon counsel to be satisfied that proceedings have a cause of action sufficient to invoke the Court’s jurisdiction and sufficient to warrant exposing an opposing party to the risk of orders and Court sanction. The claim by [the debtor] against [the creditor] was on foot, the pleadings had not been struck out, the particulars had not been struck out, its existence had been reaffirmed on 3 March 2009 and, however imprecise the claim may have been, on no view could it be said that [the debtor] was asserting a claim it did not seriously maintain. [The creditors’ solicitors] were aware of that claim as the solicitors on the record for [the creditor]. They knew that the proceeding was on foot when the statutory demand was issued. The assertion that the quantum of the claim was in excess of $80,000 may not be backed up by supporting material but it is not controverted with any opposing evidence. Furthermore, the nature of the claims made are essentially legal costs which it may be assumed that [a deponent] is well placed to estimate.
[4] Great Australian Gold Mining Co v Martin (1877) 5 Ch D 1, 10 (James LJ).’
His Honour noted that:
‘the mere insistence by a client that his, her or its legal practitioner undertake conduct which would otherwise expose a solicitor to an order for costs [a circumstance not present in this case] does not of itself justify the solicitor acting upon the client’s insistence. A solicitor is not always justified in acting as a client might insist.[5]
[5] Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300; Re Cooke (1889) 5 TLR, 408 (Lord Esher MR).’
VCAT’s Judge Ross appointed to the Supreme Court
Judge Iain Ross, who was the head honcho of VCAT’s Legal Practice List, and the Tribunal’s Vice-President, has been appointed to the Supreme Court, presumably taking up the spot left behind by a good and honourable man and quiet champion of human rights, Justice David Harper, who has been appointed to the Court of Appeal. People from the generation before me typically seem to confuse him with Judge Les Ross, also a County Court judge, who retired in 2005. Justice Ross was appointed a Vice-President of the Australian Industrial Relations Commission at the age of 35 in 1994, and was there until he went off to Corrs briefly in early 2006. His Honour has been a County Court judge since 2007, and remained so as VCAT’s Vice-President. He was in charge of alternative dispute resolution at VCAT, and once referred to mediation my client’s application for orders compelling the Legal Services Commissioner to provide further and better particulars of a professional misconduct charge. Austlii records numerous careful and thorough decisions of his Honour in Legal Practice List matters, many of which I have blogged.
I did not even know that his Honour had commenced hearing cases in his new role, but The Age‘s front page today records that he is hearing an appeal from VCAT in the case about the taxi driver who, long ago, stabbed his wife to death under the grip of a psychosis from which he has now recovered. The case was XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy-President Macnamara who seems to have moved into Justice Ross’s old spot as head honcho of the Legal Practice List. I posted about the decision here. Attorney-General Hulls’s press release says:
Continue reading “VCAT’s Judge Ross appointed to the Supreme Court”
VCAT decision overturned for appearance of bias
Two men litigated a case over $10,000 in VCAT’s Civil List before a sessional member. As per the norm in that list, they were unrepresented. That Civil List is a place a world away from the proceedings you read about in the law reports. I must say I like the idea of an accessible tribunal where people can get the catharsis of a judicial determination, without the expenditure on legal fees which is impossible for most people. And I like to think that there is a class of case where the quality of legal representation which can be obtained for a price which is proportionate to the amount at stake is in fact such that the diligent and ordinarily intelligent litigant who is all over his or her case, and may have sought out some legal advice along the way, is likely to do better himself than with the kind of representation he can afford. It is a tough job being a member down there. All sorts of legal problems get thrown at them and they are expected to churn through them in a fraction of the time a Court would take, and give ex tempore decisions. Judges in superior courts have an easier time because counsel present relatively recognisable legal theories of disputes in a relatively predictable way. Arguments devised by people who do not think within the same structures that experienced lawyers do throw up odd ideas the appraisal of which is difficult for the very reason that they are odd.
But it is important that the Civil List actually apply the law, even if it dispenses with its more technical excrescences, and review by superior courts from time to time (incredibly rare, if you look at the statistics) remains important. Justice Habersberger considered that justice in one case had got so rough that the appellant deserved another go, and set aside VCAT’s decision: Leon Holdings Pty Ltd v O’Donnell [2009] VSC 430. The rules of evidence may not bind the tribunal, his Honour said, but whatever rules are adopted in relation to evidence, they must be applied even handedly. When the member allowed one man to tender hearsay evidence without demur but then refused to hear the other man’s hearsay evidence despite the absence of any objection by his opponent, she created a perception of bias: Continue reading “VCAT decision overturned for appearance of bias”
States’ and territories’ disciplinary systems summarised by the government
Helpfully, the government has put out a little discussion paper about its proposal for a new national legal regulator. Turns out the proposal is for the existing regulators to keep on keeping on, rebadged as offices of the Uber-Bureau but for there to be one central number for the Uber-Bureau which will oversee everything panoptically from a station atop Mt Kosciuszko. Anyway, within the discussion paper is a section summarising how things are now in relation to complaints against lawyers in each of the states and territories: Continue reading “States’ and territories’ disciplinary systems summarised by the government”
Settlements unapportioned between costs and damages
Morris v Riverwild Management Pty Ltd [2009] VSC 439 is a decision of Justice Pagone in an unusual dispute. A developer built some apartments at Falls Creek. Something obviously went wrong, because he and one of the purchasers of an apartment sued the architect, the builder, the structural engineer and his company, the supervising engineer and his company, and the building supervisor. The claimants entered into the following settlements with the defendants at around the same time:
- Architect: $1.4 million plus the claimants’ costs to be taxed on the Supreme Court scale (28%)
- Certifying engineer: $1.5 million inclusive of costs (30%)
- Builder: $175,000 all-in (3.5%)
- Building surveyor: $1.85 million inclusive of interest and costs (37%)
- Structural engineer: $79,000 inclusive of interest and costs (1.6%).
The claimants got a smidge over $5 million. The percentage borne by each respondent is shown above in brackets. The architect no doubt got a shock when the plaintiffs served a bill of costs for $2 million, including the costs of pursuing the other defendants. ‘I don’t think so!’ he objected, and Justice Pagone agreed (though a litigation estoppel based on facts I have not included meant that this was a Pyrrhic victory). The architect said if the claimants got all of their costs from him, they would get a part of their costs twice: first from him, and second from the other respondents who had paid settlements which included the costs of the claim against them. The part of the costs they would get twice was the costs which were not referable exclusively to the claim against the architect. Continue reading “Settlements unapportioned between costs and damages”
The finality of the proceeding stayed pending further order
Stays scare me. I suspect they attract obscure law that my opponents know but I don’t. Why does the law need the permanent stay? How is it different from a judgment? When is a stay a permanent stay, and when not? A solicitor friend who is one of the most experienced professional negligence lawyers in Victoria sent me Watson v Irwin Mitchell (a firm) [2009] EWHC 441 (QB); [2009] PNLR 32 because he thought it was up my alley. He is the only person I know who consistently introduces me to new authorities of interest to this blog quicker than I find them. In an effort to conquer my fears, I read it.
Claimants were dissatisfied with the settlement procured by their solicitors. So they sued for negligence, as you do. And no advocates’ immunity over in old Blighty any more. The claimants’ interlocutory defaults led to a costs order against them and a stay. Not a permanent stay, but a stay pending further order. It remained open to the claimants to pay the costs and have the stay lifted. Instead, they started a similar but not identical case against the solicitors who then sought a stay of the new claim on the basis that it was an abuse of process. Though not identical, the Court of Appeal found that it was substantially the same. Continue reading “The finality of the proceeding stayed pending further order”
Latest on claims for the other side’s lawyers to pay your costs personally instead of their client
Kelly v Jowett [2009] NSWCA 278 is the latest wasted costs case. The lawyers against whom the order was made had tendered against them their own intra-office memorandum:
‘Your performance in the conduct of this matter has been pathetic. Your failure, given the recent transfer of these matters, to even have the courtesy to provide Hamad with a memo regarding the status of the file is totally inconsiderate of a colleague already burdened with some of your other similarly neglected files. This file is your mess, clean it up.’
Ooffa! Justice of Appeal McColl, with whom the other justices of appeal agreed, explained at [61] that: Continue reading “Latest on claims for the other side’s lawyers to pay your costs personally instead of their client”
Independent legal advice given to borrower’s attorney
A good part of my practice until a mediator did the impossible and settled the case recently was taken up with two related multi-party disputes in the Supreme Court about a commercial property in Sydney Road. Two lenders sued my client and in one case his brother for possession and for repayment of a loan. They pleaded non est factum, and that was their defence. The brother was allegedly bound to the transaction by the execution of his attorney. Only problem was, his signature on the power was forged and his nephew had been induced to accept the power by fraud. Continue reading “Independent legal advice given to borrower’s attorney”
Procedure in VCAT merits reviews
Update, 24 October 2017: MH6 was affirmed on appeal: [2009] VSCA 184. See also in relation to penalties privilege in the context of administrative law reviews in the disciplinary realm the thorough judgment of Kenny J in Frugtniet v Migration Agents Registration Authority [2017] FCA 537, which is itself under appeal and could easily go to the High Court.
Original post: In recent times, I have not found legal regulators forthcoming in advising in advance the evidence to be tendered against a practitioner, and have generally sought directions for disclosure where it could not be sorted out between the parties’ representatives, sometimes attracting ire in the process. I have had disagreements, too, about who should go first in a merits review where one of the outcomes of the review involves a penalty (e.g. a fine, or suspension from practice). Usually, the plaintiff or applicant or appellant goes first, but in a review of a decision by VCAT standing in the shoes of the decision maker, it kind of makes sense for the decision maker to justify the decision first, especially if the decision is for example that the applicant is no longer a fit and proper person to practise law. I did get an order in a review of a decision to cancel without notice my client’s practising certificate that the Law Institute should prove why he was not a fit and proper person before I had to respond. Now, such orders should be routine.
MH6 v Mental Health Review Board [2008] VSC 345, an appeal from a VCAT decision, tackles these issues head on, filling out some of the implications of the Court’s earlier decision in Towie’s Case confirming that professional discipline proceedings which may result in fines or interference with an entitlement to practise are proceedings for a penalty. The Court declined in the circumstances of this case to find that there had been a denial of procedural fairness such as to require reversal of VCAT’s decision to make the applicant go first (the main circumstances were the absence of any objection to the applicant going first by his trial counsel, and the fact that the applicant had forewarning of the Mental Health Review Board’s evidence in the form of witness statements served in advance). But I do not think you will find VCAT in merits reviews of this kind making the applicant (i.e. the subject of the administrative decision) go first in a merits review hearing again. For the Court constituted by Justice of Appeal Redlich and Acting Justice of Appeal Hargreave said:
’26 The submission of the respondent cannot be sustained. It focussed on the purpose of the order rather than its effect. It is well understood that orders which may be non-punitive in their purpose can have a grave impact upon the rights or interests of an individual.[19] The consequences of an involuntary treatment order include the continued, indefinite, and involuntary detention of the applicant. An involuntary treatment order affects interests in a manner that enlivens those aspects of the hearing rule articulated in Towie. Procedural fairness would require that an involuntary detainee be given an opportunity to hear and respond to evidence that provides the jurisdictional basis for continued confinement. In such cases the ‘usual procedure for merits review’ at VCAT that ‘the applicant goes first’ will not normally be appropriate. Nor will such procedure ordinarily be appropriate at a hearing conducted by the Board. [emphasis added] Continue reading “Procedure in VCAT merits reviews”