The Lawchestra

Indulge me while I go off message for a second.  Mind you, I am going to tell you about a band that is decidedly heavy with costs lawyers, since Liz Harris is on harp and I’m playing flute, so in my own mind I have a weak but arguable case for relevance.  This Saturday sees the debut performance of the Melbourne Lawyers’ Orchestra, aka the Lawchestra, following in the steps of the several excellent doctors’ orchestras in Victoria (and even an engineers’ orchestra) and lawyers’ orchestras in London, and America. There are a handful of barristers, many solicitors, and some law students, brought together with patience and brill all at once by the rather wonderful conductor Robert Dora. We’ve got it all, mate: harp, bass drum, cor anglais, horn francais, piccolo, bass trombones, and they all get a thrashing. You should come, because it’s going to be a cracker, and also because you might very well get to hear me play in a general pause: book here. Continue reading “The Lawchestra”

Section 18(d) of the Civil Procedure Act 2010 (Vic)

Section 18(d) of the Civil Procedure Act 2010 requires litigants and their lawyers alike not to make claims in civil proceedings, or defend such claims, unless ‘on the factual and legal material available to [them] at the time of making the claims’ the claim or defence has ‘a proper basis’.  A court may make any order it considers appropriate in the interests of justice if satisfied that a person has breached s. 18(d): s. 29 and may take any contravention into account in exercising any of its powers, including specifically in relation to costs: s. 28.

As Derham AsJ said in Matthews v SPI Electricity Pty Ltd (No 2) (below):
‘The overarching obligations [including that in s. 18(d)]:

(a)          apply to any legal practitioner or any law practice acting for or on behalf of a party: Civil Procedure Act10(1)(b), (c);

(b)          apply in respect of the conduct of any aspect of a civil proceeding, including, but not limited to any interlocutory application or interlocutory proceeding: Civil Procedure Act11(a);

(c)          do not override any duty or obligation of a legal practitioner to a client to the extent that those duties and obligations and the overarching obligations can operate consistently: Civil Procedure Act13(1); and

(d)          must be complied with by a legal practitioner or a law practice engaged by, or on behalf of, a client in connection with a civil proceeding despite any obligation the legal practitioner or the law practice has to act in accordance with the instructions or wishes of the client: Civil Procedure Act13(2).

In this very workmanlike post, I simply summarise the not particularly illuminating jurisprudence to have emerged around this new provision so far. Continue reading “Section 18(d) of the Civil Procedure Act 2010 (Vic)”

More Corby saga lawyer shenanigans

I have been saying for a while now that Schapelle Corby’s saga is a case study in the importance of choosing your legal team wisely. Moss v Eagleston [2014] NSWSC 6 provides further analysis of the performance of a lawyer selected by another of the players in the saga. That selection was a selection made by a man without the resources to pay for orthodox representation and who obtained rather unorthodox representation.

The decision examines the scope of a duty of care, including by reference to an argument that pro bono work requires a lower duty of care, and the appropriate response to late assertions of the defence of advocates’ immunity, and demonstrates how the courts will deal with a claim of loss suffered as a result of a failure to provide promised legal representation at a trial.

William Moss, also known as William Miller, is a former criminal.  You can see him and hear him in this video. He says that he was supposed to pick up a package in return for a substantial sum and that shortly after Schapelle Corby’s arrest, he was told not to bother because it had ended up in Bali.  He believed that these facts strongly support Ms Corby’s protestations of innocence.  The Daily Telegraph published the claims.  He says they ratted on a promise to pay him $250,000, or at least that they conned him into divulging his claims to them in the expectation of receiving that sum.  They then published articles which were defamatory of him with the imputations that he was a small time shyster lying to get cash. So he approached lawyers.  Quite a few of them.  Finally he found one who would act for him: the firm Reimer William Winterson of Penrith.  They sent a letter of demand for damages for breach of an oral agreement.  The publishers denied the agreement.  The firm ceased to act. Continue reading “More Corby saga lawyer shenanigans”

Application to set aside costs agreements for disclosure defaults fails

A decision of the Supreme Court of Queensland has made clear what ought to be more obvious than it appears to be, namely that costs disclosure defaults will not result in the setting aside of a costs agreement in the absence of evidence that the non-disclosures had some effect on the client’s decision to enter into the costs agreement on the terms in fact adopted between the solicitor and client. Continue reading “Application to set aside costs agreements for disclosure defaults fails”

Rules relating to unjustified allegations of fraud, etc.

This post, based on research by Zoe Dealehr, collects together the various Bar conduct rules around Australia relating to the requirement of a proper factual foundation for making allegations of criminality, fraud and other serious misconduct as well as for allegations in litigation more generally.

First of all, the relevant Victorian rules are set out.  They are more detailed than the other states’ and territories’ rules.  Apart from Tasmania’s, the rest of Australia’s conduct rules for barristers are almost uniform and are similar to, but different from Victoria’s.

Tasmania appears to have no conduct rules on the subject, but it is said that it is soon to adopt the national rules which are the foundation for the non-Victorian rules.

Continue reading “Rules relating to unjustified allegations of fraud, etc.”