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On Vanuatu

Paul Theroux is a travel writer I like. Good travellers who are good writers are a rare breed.  I only know of one other instance (a childhood infatuation with Gerald Durrell aside): Eric Newby, author of A Short Walk in the Hindu Kush, and that precursor to so many lesser books, A Small Place in Italy.  Theroux’s Happy Isles of Oceania is a good book.  Largely unimpressed by the South Pacific islanders’ ultimate acquiescence to missionaries and, worse, Mormonism, by their nowadays inability to navigate beyond the inner reef, by their infatuation with enormous tins of fatty low-grade corned beef, and pissed off after the breakup of his first marriage, he told it like he saw it.  Many South Pacific nations are still muttering loudly.  But he was charmed by the ni-Vanuatu.  And so will you be if you grab a cheap flight to Port Vila, hop on a freighter for Tanna just for the adventure (most people fly to Tanna in one of Air Vanuatu’s gleaming new jets), and stay at the Rocky Ridge Bungalows of my new friends, Tom and Margaret Naieu.

So impressed was I by Tom and Margaret and this new accommodation whose gardens are pictured that I made them a website.  Their bungalows are basic but charming, within and yet separate from the picturesque village of Iwiak. At well under $100 a night, they come with the enormous advantage that you do not feel like you are paying through the nose, a problem at Tom’s tenants’ place, the adjacent award winning White Grass Resort, where I stayed.  You can sit gazing over the same views White Grass boasts about from Tom’s simple but good dining room as the sun goes down over the darkening ocean, and eat a lobster one of his boys has just scooped off the bottom of the sea floor.  Or you can walk along a sun-dappled path through the littoral forest and eat with Japanese opera singers and successful salesmen from Frankston at White Grass’s dining room — it’s one of the most beautiful and most beautifully situated dining rooms I have ever seen.  The ‘Blue Hole 2’ snorkelling heaven White Grass Resort advertises is in fact accessed from Rocky Ridge Bungalows, and it craps on the snorkelling at the other places I stayed. Continue reading “On Vanuatu”

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Victorian proportionate liability scheme: transitional provisions

In Taylor v Gosling [2010] VSC 75, Justice Hargreave of the Supreme Court of Victoria has decided that whether the proportionate liability regime applies to a proceeding depends on whether the writ was issued before or after the end of 2003, even if some of the concurrent wrongdoer defendants were joined to the proceedings before and some after 1 January 2004.  In other words a case started before the end of 2003 is governed by the old regime of joint and several liability between co-defendants, who may seek contribution against one another, and that is so even in respect of those defendants who come into the proceeding only in or after January 2004. My friend Tyson Wodak’s arguments on that question convinced Justice Hargreave not to follow an earlier decision of Justice Byrne of the same Court (Premier Building and Consulting Pty Ltd v Spotless Group Ltd (2007) 64 ACSR 111, see para 34(b)).  His Honour’s reasoning was as follows: Continue reading “Victorian proportionate liability scheme: transitional provisions”

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Solicitor secretly records client then sues them for ‘consultancy fees’ under 6 year old oral agreement over dinner

A well-known Melbourne solicitor sued his clients for $165,000 in fees for helping them buy a car dealership.  Six years after a dinner with the clients in St Kilda, he sued his dinner companions, claiming to have entered at the dinner into an oral agreement that he would receive 1% of the purchase price of a Cairns car dealership upon settlement.  Oral costs agreements under the Legal Practice Act, 1996 were void, but the solicitor claimed that he was not doing legal work, but was engaged as a business consultant.  He had not rendered a bill for the fees before suing.  These problems with his claims were not decided, because Justice Hollingworth found the alleged agreement not to have been made out.  There was no document which recorded the alleged oral agreement, and none which corroborated it in any meaningful way. More than one hundred times he had acted for the clients on an orthodox basis, but this, he claimed, was the third percentage based fees agreement. Justice Hollingworth found that the two previous such agreements claimed by the solicitor had not in fact been made, so the question was whether this fee agreement was the odd one out, and described aspects of his evidence as ‘unsatisfactory’.  After it was apparent he and the clients disagreed about whether there was a 1% fee agreement, the solicitor secretly recorded a conversation in which he ‘repeatedly tried to get [one of the clients] to admit the existence of the 1% agreement’.  Though on her Honour’s construction of the recording, he failed in that endeavour, he nonetheless tendered the recorded evidence at trial.  The solicitor lost; he had grabbed a tiger by the tail.  The decision is EV v King [2010] VSC 80.

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Evidence paper, part I (introduction to the new law)

Now I know my posting on the new Evidence Act has been a bit sporadic, and disordered, but now I’ve written my research paper on the subject, and whereas before I was subjecting you to the offcuts I discarded along the way, now I am going to subject you to a serialised version of the essay, probably embroidered a bit as I go, and with the errors pointed out by Associate Professor Palmer expurgated.  I appeared in my first trial involving the new laws the other day, in the County Court.  It was all very anti-climactic: the new Act did not even get a mention.  Anyway, for what may seem like the third time, an introduction to the new laws of evidence:

‘Victoria’s Evidence Act, 2008 commenced on 1 January 2010.  How it will affect civil litigation remains to be seen.  Because the common law, modified by the Evidence Act, 1958 often either defied common sense so profoundly or was inaccessible in intelligible form, there developed a substantial body of civil litigation in which the rules of evidence were not in fact applied, and some other fuzzy, unspoken rules varying between jurisdictions and even lists, were applied instead. Continue reading “Evidence paper, part I (introduction to the new law)”

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Honest and reasonable mistake as a defence to disciplinary charges

Senior Member Howell decided last year in Legal Services Commissioner v RMB [2010] VCAT 51 that there is a mens rea element to professional discipline offences under the Legal Profession Act, 2004, in that there is a defence of ‘honest and reasonable mistake’.  That fascinates me, since under the previous Act, misconduct and unsatisfactory conduct was often delineated by the presence or absence of knowledge that the conduct engaged in breached a norm of conduct. Conduct in ignorance of its wrongfulness was punishable as unsatisfactory conduct.  Now, though, there is no knowledge element built into the definitions of the 2004 Act, and there seems to be no particular reason why the concept of honest and reasonable mistake which has been imported from the criminal law, might not apply equally to cases of professional misconduct and unsatisfactory professional conduct. Continue reading “Honest and reasonable mistake as a defence to disciplinary charges”

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Proportionate liability and arbitrations

A Clayton Utz ‘Project Insight’ is worth a look.  It considers whether the proportionate liability schemes around the country have operation in arbitrations. The answer, according to Tasmania’s Supreme Court in Aquagenics Pty Ltd v Break O’Day Council (No 2) [2009] TASSC 89 is — Yes. The reason is that there is an implied term in the arbitration contract that the arbitrator will grant the relief which would be available in a court.  As the authors Owen Hayford and Audrey Echevarria point out, the implication of an implied term may be prevented by an inconsistent express term.  I am aware of a passing consideration of the matter in Victoria.  In Wealthcare Financial Planningn Pty Ltd v Financial Industry Complaints Service Ltd [2009] VSC 7, Justice Cavanough noted: Continue reading “Proportionate liability and arbitrations”

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Lawyers’ duty to speak proper and be nice like

Update, 8 April 2010: The full-text version of Ms Jones’ article is freely available here.  See also this article published on the Queensland Law Society’s impressive website.

Original post: Nicky Jones has written a scholarly article about lawyers’ duty to remain courteous: Lawyers, Language and Legal Professional Standards: Legal Services Commissioner v Turley [2008] LPT 4, published at (2009) 28(2) The University of Queensland Law Journal 353-359. Volume 28(2) is in fact a special edition of that journal, entitled ‘Australian and New Zealand Lawyers: Ethics and Regulation’, and I am seeking out a copy.

For a scholarly treatment of what is and is not nice, like, I recommend the relevant bit of Julian Burnside QC’s Word Watching.  Ms Jones’ writing gives me a chance to link to one of my favourite legal documents, a submission by a Colorado lawyer to strike out a criminal charge against a young man who allegedly called his principal a ‘fucker, a fag, and a fucking fag.’  Here is a flavour:

‘In order to provide a context for the alleged crime, we must first examine the history of Fuck and its evolution in society. Fuck’s earliest recorded use is prior to the year 1500 from the English-Latin poem Flen Flyys: “Non sunt in celi quia fuccant uuiuys of heli,” which traslates to “they are not in heaven because they fuck the wives of Ely.” See www.wikipedia.org/wiki/fuck. Continue reading “Lawyers’ duty to speak proper and be nice like”

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Changes to legal professional privilege operate retrospectively

They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now going to apply in relation to any particular communication.  If the Tax Man, or the Legal Services Commissioner, compels you to produce documents, the common law will apply.  If you produce them, the common law will determine whether the production amounts to a waiver.  If the investigation leads to court (but not VCAT) proceedings proceedings, to which the new law will apply, you might be compelled by subpoena to produce documents you successfully resisted producing in the investigation pursuant to the common law.  Furthermore, in those proceedings, the Court will decide for itself, under the new law, whether the production to the Commissioner in the investigation amounted to a waiver or not.

The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments.  Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial.  But there are differences too: Justice Byrne’s decision referred to below confirms it.

I blogged about the transitional provisions for the new legislation here.  It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act.  There is a presumption in statutory interpretation against the retrospective taking away of accrued rights.  But there is no such presumption in relation to changing procedures for the vindication of rights.

Someone has actually already run this esoteric argument.  In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta: Continue reading “Changes to legal professional privilege operate retrospectively”

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Previous infractions of same rule not relevant to distinction between professional misconduct and unsatisfactory professional conduct

In Legal Services Commissioner v R-MB [2010] VCAT 182, Senior Member Howell found a repeat offender had failed to comply with a demand from the Legal Services Commissioner for a written explanation of conduct the subject of a complaint.  The Bureau de Spank argued that the infraction should be regarded as professional misconduct rather than unsatisfactory professional conduct, as contended for by the practitioner.  One of the reasons put forward was that the solicitor had previously been found guilty of the same thing.  The Bureau suggested there were authorities in support of this proposition, but did not identify them.  Neither party appears to have brought to Senior Member Howell’s attention an authority decided by another member sitting in VCAT’s Legal Practice List this year which suggested ‘prior offences’, or their absence was irrelevant in the determination of exactly this question.  On that occasion, VCAT said:

’15    I have had some difficulty deciding whether the conduct of the applicant is unsatisfactory professional conduct or professional misconduct. Part of the difficulty has been whether I should take into account the fact that the respondent has had no previous determinations made against him of a disciplinary nature. In my view, that is something that should be taken into account on the matter of penalty but it should not be taken into account as a matter of what charge for which he should be found guilty.

16    I compare this to the hearing of a criminal matter, although it is a disciplinary matter and something entirely different, but the similarity is that a criminal court would not look at prior convictions until it had decided what breach or what act had been committed. In this particular instance, it is appropriate that I should not look at past conduct until I have decided what act has been committed, ie whether it is unsatisfactory professional conduct or professional misconduct.’

Now it’s my turn not to identify the authority, but only because I was in it, and I don’t blog my own cases.

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The rule against duplicity in disciplinary charges

‘Quis custodiet ipsos custodes?’, a Melbourne lawyer’s criminal law blog,  explained the criminal law rule against duplicity here.  I am not much interested in it from a professional discipline point of view, and it seems the courts tend not to get over-excited about it either (though the lawyer made some progress with it in Law Society of NSW v Shalovsky [2008] NSWADT 14).  In the course of my readings about other things, I came across the Court of Appeal’s discussion of the principle as applied in a professional discipline prosecution of a lawyer in Woods v The Legal Ombudsman [2004] VSCA 247. Despite the numbering below, the first paragraph is in fact [39]:

  1. The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law.[11] It seems plain enough that the basis for the rule is fairness to the defendant in the sense of his or her being informed, at the very outset, what is the specific offence which is being alleged and, if it is established, to have certainty of what charge he or she has been found guilty. Thus, as Evatt, J. explained in Johnson v. Miller[12]: Continue reading “The rule against duplicity in disciplinary charges”