Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128 examines the nature of the appeal rights of non-parties against whom personal costs orders are made. In that case, the unfortunate person against whom such an order was made was a liquidator. But in the course of his analysis, Justice of Appeal Campbell considered the cases on appeals in relation to personal costs orders against lawyers, at [74] to [82] (despite the numbering below): Continue reading “Appeal rights against personal costs orders against lawyers”
Federal Court sets aside bankruptcy notice used for debt collection against solvent individuals as abuse of process
Without first formally demanding payment of a debt, creditors served a bankruptcy notice. The debtors were insolvency practitioners and there was no suggestion that they were insolvent. Federal Magistrate Raphael set aside the notice on the basis it was an abuse of process, issued with a purpose not of making the respondents bankrupt but of embarrassing them. His Honour said:
‘The proper purpose of seeking a sequestration order against the estate of a debtor is so that a debtor, who is unable to pay his debts as and when they fall due, should have his affairs controlled for the benefit of all his creditors and not just specific ones. Allied to this purpose is the prevention of the debtor incurring further obligations which he will not be able to meet. It is a public purpose. The bankruptcy process is not to be used for private ends.’
On appeal, the decision was confirmed by the Federal Court’s Justice Marshall. In Lord v Rankine [2011] FMCA 668, at [20] – [34] (despite the numbering below) his Honour said:
Privilege in a time sheet?
Can a lawyer’s bill be subject to client legal privilege (the Evidence Act, 2008‘s equivalent of the common law’s legal professional privilege)? Can a lawyer’s time sheet be privileged? Yes, if they disclose privileged information, the Supreme Court’s Justice Vickery has reiterated in Hodgson v Amcor Ltd [2011] VSC 204 at [53] to [65] (despite the numbering below): Continue reading “Privilege in a time sheet?”
Disciplinary prosecutors must specifically plead dishonesty
In Council of the Law Society of NSW v WDC [2011] NSWADT 83, NSW’s Bureau de Spank rejected a submission of the Law Society to the effect that it should make findings of misappropriation (a necessary element of which is dishonesty) which the Law Society said it had impliedly alleged in the charge. ‘Nonsense!’ said the Bureau:
‘As the above outline indicates, the Grounds stated in the Application alleged misappropriation in the context of only three matters: Daude, Gibki and Laczny. But Mr Stitt argued that a claim of misappropriation was made implicitly in a number of other matters in which the Solicitor withdrew funds to which he was not entitled from a trust account: for example, Ida Potier, Davidson, Crowe, Maguda, Milkow, Obolska and Pugliese.
We agree, however, with a submission by Mr Lynch that the only matters in which we may properly make a finding of misappropriation are those in which the Law Society has alleged it. This follows, in our opinion, from the decision of the High Court in Walsh v Law Society of New South Wales (1999) 198 CLR 73: see in particular the judgment of McHugh, Kirby and Callinan JJ at 94-95.’
Jones v Dunkel inferences in disciplinary hearings
In Council of the Law Society of NSW v Clapin [2011] NSWADT 83, NSW’s Bureau de Spank rejected a submission based on Jones v Dunkel which the Law Society said should be drawn against the solicitor, who did not give evidence:
In dealing in this way with the question whether the Solicitor violated the statutory requirements with full awareness of their contents or because he was ignorant of them, we are rejecting a submission put by Mr Stitt. He argued that because the Solicitor chose not to give evidence in these proceedings we should infer that he was fully aware of the nature of these requirements. In disciplinary proceedings such as these, however, we should not make findings of seriously improper conduct against the respondent unless they are affirmatively established by cogent evidence. We decline to draw the inference urged upon us by Mr Stitt.
Dishonesty in a solicitor: does it require striking off?
Updated post, 1 July 2016: see the English High Court case Law Society of Ireland v Patrick Enright described in this case note.
Original post: In Fraser v Council of the Law Society of NSW [1992] NSWCA 72, which is part of the subject of this post, President Kirby made some comments on the relationship between the jurisdiction to strike a practitioner off the roll and a finding or admission of dishonesty, that is, fraud. The Court of Appeal unanimously overturned the decision of a disciplinary tribunal striking off the roll a solicitor with an otherwise unblemished record for fraudulently giving a certificate of advice to a mortgagor, then not being frank about it towards the mortgagee’s solicitor and in the disciplinary investigation, and having difficulty accepting, in the disciplinary tribunal that what he had done amounted to fraud. Kirby P said that a finding of fraud is not a prima facie indicium that a lawyer ought to be struck off; everything depends on the circumstances: Continue reading “Dishonesty in a solicitor: does it require striking off?”
Solicitor fined $3,500 for forgery
A 27 year old solicitor working in family law twice lied about the existence of a document, and then forged it. That was just one and a bit years after a harrowing admission application in which the Board of Examiners split on whether she should be admitted, as a result of what VCAT’s Deputy President McNamara referred to as ‘allegations of plagiarism’ at the College of Law, and a want of frankness in their disclosure. The Board had given the solicitor a stern warning at the end of the hearing. For the forgery, the solicitor was fined $3,500 and reprimanded, the Commissioner’s submission that a year’s suspension was warranted being dismissed as ‘disproportionate’: Legal Services Commissioner v SJJ, McNamara DP, 14 April 2011. If followed, this decision suggests once again that interference by VCAT with a practising certificate requires quite profound dishonesty.
As to the fine, it may be that $3,500 was a significant fine for this solicitor: her financial circumstances were described as ‘exiguous’, but she was employed as a solicitor by a respectable Melbourne firm at the time of the penalty hearing, looked set to remain so employed by her supportive employer, and her circumstances seem to have been principally affected by the size of her mortgage. The general deterrence of a fine of this sum would be enhanced if its appropriateness in the context of the solicitor’s ability to pay it were explained in greater detail. That way, solicitors weighing up the risks of forging a document against its perceived desirability (yes, that is the theory of general deterrence) would be able to remember back to the report of the case in question and think ‘Well if he was fined $5,000 and had an annual disposable income of $25,000 living in a modest home, I must be looking at a fine of something like $20,000 since my disposable income is four times his, and I live in a home twice as large as my family actually needs.’