In Gluyas v Google Inc [2010] VCAT 540, an Australian blogger sued Google in VCAT. Google Inc is an American company. VCAT struck out the suit on another basis, but indicated that there are no provisions for the service of VCAT applications on persons outside Australia, unlike in the Supreme Court, so that VCAT probably had no jurisdiction unless Google Inc consented to it exercising jurisdiction, which Google did not do. Some tribunal proceedings with a link to Victoria may be served in other states and territories under Part 4 of the Service and Execution of Process Act, 1992.
Extra-territoriality of Victorian statutes
In Gluyas v Google Inc [2010] VCAT 540, an Australian blogger took Google to VCAT to complain about the content of a blog published in America on Google’s blogger platform. The blog criticised people with the blogger’s disability. The blogger sought relief under the Equal Opportunity Act, 1995 (Vic.), claiming that Google had authorised or assisted the American blogger to discriminate against the class of persons suffering his disability, and against him personally. The Act does prohibit such assistance and authorisation, but Google applied to strike out the suit on the basis that the alleged conduct occurred in America, and the Equal Opportunity Act did not regulate the conduct of Americans in America, or in legal language, the Act did not have extra-territorial operation. Deputy President McNamara agreed. There is nothing startling about this application of well-worn principles, but this blog sometimes just restates things which people like me need reminding of from time to time. Continue reading “Extra-territoriality of Victorian statutes”
For sale: evidence texts
I want to sell this text, the current edition published in 2009, for $100 including postage within Australia, or $95 picked up from my chambers. It sells at the Law Institute Library for $130.50. I bought this one and then they put out a Victorian edition the purchase of which I hope to fund by the sale of this pan-Australian edition. Nevertheless, this red and black edition contains commentary on Victoria’s Evidence Act, 2008.
Also for sale:
Andrew Palmer, Proof and the Preparation of Trials (a brilliant book). I plan to put the proceeds of the sale of this first edition, which sells at the Law Institute Library for $78 towards the purchase of the second. The publisher’s spiel about the second edition, which is much like the first, is here.
and
Jeremy Gans and Andrew Palmer, Australian Principles of Evidence, undoubtedly the best starting point for the study of the law of evidence in Australia, for anyone wanting a broader perspective than only the uniform evidence law.
Whoever offers the most within the next 7 days can have the Palmer books, or either of them, so long as the offer is more than my secret reserve.
Lawyer referred for appearance of complicity in husband client’s fraud on wife
In Lambert & Jackson [2010] FamCA 357, a Family Court judge sitting in Sydney made the following orders:
‘1. There be a further listing before me on 24 May 2010… for the purposes of giving Ms Y an opportunity to make submissions as to why I should not send my prima facie findings to the Legal Services Commission (Queensland) for the purpose of him considering whether to initiate and prosecute disciplinary proceedings against Ms Y.
2. Any affidavit evidence upon which Ms Y wishes to rely for the purposes of her submissions … is to be filed … [by] 21 May 2010.’ Continue reading “Lawyer referred for appearance of complicity in husband client’s fraud on wife”
Without prejudice privilege and the Evidence Act, 2008
Update, 9 August 2010: See also Forsyth v Sinclair (No 2) [2010] VSCA 195 where Justices of Appeal Neave and Redlich and Acting Justice of Appeal Habersberger held that the Evidence Act, 2008‘s ‘relevant to costs’ exception to the s. 131 rule that without prejudice communications are inadmissible is trumped by the Supreme Court Act, 1986 provision that anything said or done at a Court-ordered mediation may not be adduced in evidence. So, one party’s counsel said to another at the mediation that the very costs consequences which the Court ended up making would flow if the other party did not accept an offer. That was relevant to the question of costs, but it was inadmissible because of s. 24A of the Supreme Court Act, 1986.
Original post: In Alexander v Australian Community Pharmacy Authority (No 2) [2010] FCA 467, a judge of the Federal Court in Melbourne admitted a ‘without prejudice’ letter (which was not expressed to be ‘without prejudice except as to costs’) into evidence at a post-trial costs hearing. His Honour noted that the parties paid no attention in argument to the Evidence Act, 2005 (Cth) which governed the issue, and that communications which otherwise attract negotiation privilege are admissible if they are relevant to costs. Victorian lawyers are obviously going to have to get used to the new regime, because the Evidence Act, 2008 (Vic.) is to the same effect. Based on this decision in relation to legal professional privilege (now called ‘client legal privilege’ at least in those circumstances where the Evidence Act, 2008 applies), it is likely that the new regime will apply to the adduction even of letters written prior to the commencement of the new Act. Treat every without prejudice letter as a Calderbank letter, in other words. Continue reading “Without prejudice privilege and the Evidence Act, 2008”
Poorer students more likely to end up committing professional misconduct
A study in the British Medical Journal has suggested that students from poorer families and students with poor marks are more likely to engage in serious professional misconduct than other students. It should really suggest that such students are more likely to get caught engaging in serious professional misconduct, but it’s interesting nevertheless. The sample space was small: the backgrounds of 59 doctors against whom serious charges of misconduct were made out were analysed.
Reminder: you need very clear instructions before commencing proceedings on a person’s behalf
Updated, 23 June 2015: See Doulman v ACT Electronic Solutions Pty Limited (No 2) [2015] FCCA 1664
Updated, 16 July 2014: Brereton J summarised the authorities on this question in In the matter of HIH Insurance Limited (in liquidation); Smith v McGrath [2014] NSWSC 922 at [17], as follows:
‘Fundamentally, the extent of a lawyer’s authority depends on the construction of the retainer, in which terms can be implied as well as express [Hawkins Hill Gold Mining Co v Briscoe]. However, generally speaking, clear and specific words are required to authorise the institution of court proceedings Atkinson v Abbott; Wray v Kemp; Hawkins Hill Gold Mining Co v Briscoe]. This is because of the serious consequences, including in particular exposure to the possibility of adverse costs orders [City of Glenorchy v Addison]; and also because a solicitor ought not readily be implied to be authorised to decide whether or not to institute proceedings [Hawkins Hill Gold Mining Co v Briscoe; Atkinson v Abbott]. Where words to the effect of authorising “such further steps as may be necessary” follow the main object of the retainer, those words are not sufficient to authorise institution of proceedings where the specific words would not do so, the general words being restricted to what is necessary for the proper performance of the particular acts [Kemp v Wray; Knox Street Apartments v Flexman]. While authority to institute proceedings once given extends to final judgment and execution, it does not authorise institution of an appeal without further express instructions [James v Ricknell; In re Joseph Woolf; City of Glenorchy v Addison].’
Original post: Bray v Dye (No 2) [2010] VSC 152, a decision of Justice Judd, is a salutary reminder of the importance of solicitors getting very clear instructions from anyone on whose behalf they intend to commence or defend legal proceedings, and checking that they have capacity to engage in litigation (i.e. that they are of sound mind, and are not minors). In relation to this fundamental instruction in a retainer, it is more dangerous to rely on instructions through agents than it is to take instructions from agents in relation to steps in the litigation. Get it wrong, and the lawyer will be ordered personally to pay adverse costs ordered against the phantom litigant, once the truth is ascertained, generally following an attempt at execution. That is what happened in this case: the solicitor and the barrister were substituted for the person on whose behalf they instituted proceedings, unbeknown to her, which failed and resulted in adverse costs orders. According to the lawyers’ version of events, they did so on the basis of the second plaintiff’s oral instructions that he was authorised by the first plaintiff to instruct them to commence proceedings. Continue reading “Reminder: you need very clear instructions before commencing proceedings on a person’s behalf”
What are ‘legal proceedings to recover legal costs’?
A barrister rang me the other day in relation to what he probably thought was a simple question: if a lawyer settles a dispute about legal costs and then sues for specific performance, is it a ‘proceeding to recover legal costs’? No, I said, but I could not find, on my blog, or anywhere else where I store things for later use, authority for the proposition. Now I have come across the authority I had in the back of my mind and have forgotten who asked the question. So here it is, for the whole world to enjoy: Koutsourais & v Metledge & Associates [2004] NSWCA 313. In fact, it is not authority for the proposition I had in my mind, since one judge held in favour of the proposition, one against, and one abstained from deciding the case on that issue. Its investigation of previous cases is nonetheless useful, and it and those cases provide a useful jumping off point for anyone who needs to research the issue. It has been considered subsequently, in cases published on Austlii, in these cases. The ones I have looked at suggest that the proposition is a good one, at least where the character of the settlement agreement is sufficiently removed conceptually from the original indebtedness, but don’t quote me on that tentative conclusion. Anyone know of any Victorian authority on the question? Continue reading “What are ‘legal proceedings to recover legal costs’?”
The travels of food
Like the tuna, I’m going across the seas, to a new nation whose Prime Minister is the Che Guevara of our time, a charismatic guerrilla poet reluctantly coaxed into power from time to time by his people who aspires instead to tend his garden. Now Alain de Botton is a good writer. Consider, for example The Art of Travel. His latest work, The Pleasures and Sorrows of Work (Hamish Hamilton, 2009) does not really live up to its title, but is brilliant in parts. Why a photographic essay on the less than 60 hour journey of a tuna caught in the Maldives on its way from Indonesia to Somalia, to the Bristol dinner table of Linda Drummond, accompanied all the way by de Botton, is in a book called The Pleasures and Sorrows of Work is an interesting question, but I am glad it was:
‘The tuna has never been this far out of the water, has never seen light this bright, but he knows instinctively that he will drown in so much air. The fishermen need him to stop flooding his arteries with blood in panic, or he will darken, and therefore ruin, the appearance of his flesh against a dinner plate. So the captain’s brother swiftly wrestles him between his rubber boots and raises aloft a large, blunt mallet, resembling the archetypal club of a prehistoric man, carved from the trunk of a coconut tree. He brings it down heavily. The tuna’s eyes jerk out of their sockets. His tail convulses. His jaw opens and closes, as ours might do, but no scream emerges. The mallet strikes again. … The fisherman is himself enraged now, striking the beast vengefully, cursing the dying creature in Dhivehi: ‘Nagoobablba, nagoobablba, hey aruvaalaanan (‘Bitch, bitch, you’ve had it now’). This is the first tuna he has caught in eight days, and there are six children waiting at home.’
A little similar is Dutch conceptual artist Christien Meindert’s Pig 05049, which follows the transformation of a single pig into many different and surprising things. I got onto it via this article, which says this, amongst other things:
‘The bladder becomes the skin of a tambourine. Haemoglobin goes into cigarette filters, and is added to ham to enhance its appearance. From pig’s bone fat we get antifreeze, floor wax, toothpaste, crayons, anti-wrinkle cream, make-up foundation, and hair conditioner. And even bullets. Gelatine from pig bones helps move gunpowder into shell casings.’
What is a ‘lump sum bill’?
In the law of legal costs, there has long been a distinction between a lump sum bill, of the kind generally given in the first instance by solicitors to clients with whom they have an ongoing working relationship, and an itemized bill which is usually given if a client wants a bit more detail in relation to how the hell legal costs could possibly have blown out to the amount stated in the lump sum bill. Where the solicitor-client relationship is under a fair bit of strain, or has broken down, itemized bills are sometimes given in the first instance. They were, and sometimes still are, known also as bills of costs in taxable form. There is quite a bit of law on what is necessary for a bill to qualify as an itemized bill, but not all that much about what is necessary to qualify as a lump sum bill. The difficulty is exacerbated by the lack of definition of ‘lump sum bill’ in s. 61 of the Supreme Court Act, 1986 or its successors the Legal Practice Act, 1996 or the Legal Profession Act, 2004.
My friend Richard Antill gave me an old decision of the Supreme Court of Victoria on the question, Stevens v Keogh, unreported, 3 December 1996, Justice McDonald. Contact me if you would like a copy. A solicitor sued his client for fees. The client defended, called no evidence at trial, and successfully contended that the solicitor’s evidence disclosed no case to answer. The letter under cover of which the controversial bills was given said:
‘I confirm that at our first meeting I stated that my charge would be at the rate of $150 per hour or pro rata per part. Accordingly my account simply lists the times spent on the work for you’.
The bill itself said: