Pia and twitter

Pia Warne has been distracting me from blogging recently.  She was born a bit more than a week ago.

But tweeting has also distracted me.  Twitter is a micro-blogging platform.  I had never been there until just before I started tweeting: here is my Twitter page.  Twitter involves following and being followed.  I tweet a short message of up to 140 characters and those 32 individuals who follow me get each message posted in their timeline, along with tweets from everyone else they follow. If anyone they follow retweets one of my tweets, then they get it too.  Similarly, a chronological amalgam of the tweets of those I follow appears in my timeline, along with any tweets of others that have been retweeted by those I follow. Continue reading “Pia and twitter”

A new advocates’ immunity case

On the 6th of last month, Justice Hislop of the New South Wales Supreme Court found a professional negligence claim against a solicitor to be defeated by the defence of advocates’ immunity in Gattellaro v Spencer [2010] NSWSC 1122.  Nothing particularly exciting about the decision, but I did learn a new word: ‘cerebration’.  I looked at it and my ‘that’s not a word’ alarm began to sound.  But it is a word, meaning reasoning, thinking. His Honour summarised the law relating to advocates’ immunity as follows:

Continue reading “A new advocates’ immunity case”

England recognises new exception to without prejudice privilege

Herbert Smith’s e-bulletin commences:

‘Supreme Court confirms new exception to the ‘without prejudice’ rule

In its judgment handed down on 27 October 2010 in Oceanbulk Trading & Shipping SA v TMT Asia [2010] UKSC 44, the Supreme Court added a new exception to the ‘without prejudice’ rule. It held that facts communicated between parties in the course of ‘without prejudice’ negotiations should be admissible, if they would otherwise be admissible as part of the ‘factual matrix’ to aid contractual construction.’

The contract the construction of which was contemplated was a settlement agreement. The Supreme Court is now the foremost Court in England, following the demise of the House of Lords.

Evidence of offers at mediation admitted into evidence

Simply Irresistable Pty Ltd v Couper [2010] VSC 505 is a ruling in a solicitor’s negligence case decided under the Evidence Act, 2008 about an objection to the adduction of evidence as to offers made in a previous proceeding. A company is suing its former lawyers for negligence in the Supreme Court at the moment.  They are defending on bases that include that the company caused its own losses, and alternatively failed to mitigate them.  A woman gave evidence for the company.  An inference arising from the evidence is that the company’s former lawyers were the sole cause of the loss of an opportunity to exercise an option pursuant to which they could have acquired for about $200,000 an apartment then worth $600,000.  The company says the lawyers negligently failed to advise her to exercise the option, so that she lost about $400,000, plus additional amounts representing the increase in value in the property since then.

The woman had previously sued her solicitor before the defendants commenced to act for her, as well as the person from whom they could have purchased had they exercised the option (Maher v Millennium Markets [2004] VSC 174).  In that earlier proceeding, there was a mediation.  According to the solicitor defendants in the present matter, the defendants in the earlier proceeding offered to settle on the basis that the woman could purchase the apartment for $250,000.  Their counsel intimated a desire to cross-examine the woman in order to establish that fact.  The woman’s counsel objected on the basis that the offer was made at a Court-ordered mediation and was without prejudice. Continue reading “Evidence of offers at mediation admitted into evidence”

Free stuff from ‘Legal Ethics Journal’ (UK)

The table of contents of new issues of Legal Ethics Journal are available online.  Its general editor is Christine Parker from Melbourne University.  Its advisory board features a number of Australians too: Adrian Evans, Monash University, Reid Mortensen, University of Southern Queensland, and Gino Dal Pont, University of Tasmania.  Unlike the rest of the journal, ‘correspondents’ reports’ are free.  Here are some beautifully written examples from Melbourne University’s Linda Haller, who is also the journal’s ‘Ethics in Practice Editor’: one, two, three.  Other correspondents report on England and Wales, China, Canada, and America.  You can sign up for emails with news from the Journal.

Certification of pleadings in Victorian courts

By virtue of the Supreme Court (Chapter I Amendment No. 21) Rules 2010 and the Civil Procedure Act, 2010 This is what solicitors using the Supreme Court of Victoria are going to have to sign before lodging pleadings as of next year:

‘In accordance with section 42 of the Civil Procedure Act 2010, I [name of legal practitioner or if not legally represented, name of party] certify to the Court that, in relation to the document [identify document to which certification relates] filed on behalf of [specify party], on the factual and legal material available to me at present:

(a)    each allegation of fact in the document has a proper basis;

*(b) each denial in the document has a proper basis;

*(c) there is a proper basis for each non-admission in the document.

Date:
*Delete if not applicable.’

I will be interested to learn what a proper basis for a non-admission is.

Shareholder class actions: resources

I wrote a paper on the reception of a causation presumption employed in American securities class actions, the fraud on the market doctrine.  Since no shareholder class action has gone to judgment in Australia, how the difficult issues associated with causation in these kinds of cases will be treated remains to be worked out.  In contrast to the dearth of authority, there is a surfeit of academic speculation.  There are a number of useful resources which are either recent or may not be well known in Australia:

  • A collection of conference papers published as K E Lindgren (ed) Investor Class Actions (2009) see this page;
  • (2009) 32(3) University of New South Wales Law Journal which contains 12 articles on class actions, including several entirely or partly devoted to causation questions;
  • Nera Economic Consulting’s website, with numerous reports on the state of securities class actions in America.
  • Stanford Securities Class Action Clearing House, which aggregates writing on the subject.
  • Professor Morabito’s first two reports on Australian class actions: one, two.
  • The D&O Diary blog.
  • And The 10b-5 Daily blog.

The full bibliography for my paper is reproduced below. Continue reading “Shareholder class actions: resources”

The sting in calling in aid your mental infirmity in disciplinary proceedings

Legal Profession Complaints Committee v DL [2010] WASAT 133 is one of those cases where psychiatric evidence called in aid of the disciplinary defendant, a solicitor, was used in support of the Tribunal’s decision effectively to strike the solicitor off.  In relation to mental illness, the ‘protective not punitive’ mantra of the law of professional discipline has some bite, and it should.  The ‘sting’ can only ever have operation where the psychiatric problem which gave rise to the impugned conduct is also present at the date of the penalty hearing; the only risk in the plea in mitigation ‘I was unwell in my mind at the time I did these things, but I’m better now’ is in not making out the ‘I’m better now’ bit. The Tribunal concluded: Continue reading “The sting in calling in aid your mental infirmity in disciplinary proceedings”

Punk sues you in civil court: can you sic them for malicious prosecution?

Kinghorn v HKAC Asset Management Services (AFFL) Pty Ltd [2010] NSWDC 232 reviews the law at the extremities of the tort of malicious prosecution. I must say that I had always assumed that there needed to be a criminal prosecution before the tort of malicious prosecution might be made out, but there is no doubt that that is not the case: an action to bankrupt an individual or wind up a company may also found the tort, along with certain other kinds of actions set out at [20].  But this case required consideration of whether it could be said that malicious prosecution of a civil proceeding which involved no element of the seeking of a penalty could be seen not to found the tort clearly enough to justify summary dismissal of the claim.  The answer was no; the suit for summary dismissal failed. (There seems to be more resistance to expanding the law to provide a remedy for maliciously instituted disciplinary proceedings (see Gregory v Portsmouth City Council [2000] 1 AC 419 at 432; Noyce v Robbins [2007] WASC 98).) Continue reading “Punk sues you in civil court: can you sic them for malicious prosecution?”

Palm tree justice banned at VCAT

Justice Sifris banned palm tree justice in VCAT in a mercifully concise judgment: Christ Church Grammar School v Bosnich [2010] VSC 476, overturning President Morris’s decision in Law v MCI Technologies Pty Ltd [2006] VCAT 415, which was against the tide of NSW authorities.  Peter Riordan SC led Will Alstergren for the School. As the keener readers of this blog would be well aware, VCAT has a general jurisdiction, unlimited as to amount, in relation to disputes between the suppliers and recipients of goods and services, broadly defined.  In a sub-set of such disputes (consumer disputes and trader-trader disputes), it is empowered by s. 109(1) of the Fair Trading Act, 1999 to ‘make any order it considers fair’. The definition of ‘consumer disputes’ and ‘trader-trader disputes’ is at the end of the post. Oversimplified, however, they are disputes in relation to the supply of goods or services (a) for personal, household or domestic consumption, or (b) for a price of $10,000 or less. Continue reading “Palm tree justice banned at VCAT”

The cab rank principle

Brian Walters, a good QC, is running for the Greens in the imminent Victorian election.  His Labor opponent, Bronwyn Pike, has raised the fact that he once took a brief for a brown coal company, while now he is against brown coal as a means of generating energy.  This smear campaign is not one to be expected from a minister in a mature democracy.  Most people have some understanding that barristers (not solicitors) are obliged to take a brief from anyone, pretty much regardless of what they think of them, if the client is prepared to pay their usual fee, and they are available, properly instructed, not conflicted and the brief is within their skillset.  The principle, which acts as a conceptual prophylactic against the ‘disembarkation of fleas’, is called the ‘cab rank rule‘. Victoria’s version is set out below. It is in my opinion not one of those rules which is observed in the breach.  Even if it is not perfectly observed, it has a useful and substantial operation.  Ministers’ understanding of it should be developed; it is a fundamental precept of one of the arms of government (the judiciary).

There are three reasons why Pike’s comments are unfortunate.  First, Education Ministers should presumably try harder than others to avoid displays of ignorance.  Second, her electorate — Carlton, East Melbourne, Parkville — is no doubt teeming with lawyers (not to mention bloggers …). Third, it undermines what respect remains for the legal system. Top Victorian lawyers’ assessments of Ms Pike’s comments have been swingeing.

But one silly comment in the heat of campaigning is one thing.  When the issue is escalated to the Premier and Treasurer, and their responses are as follows, condemnation is called for, hence this post: Continue reading “The cab rank principle”