VCAT rolled for finding solicitor guilty of a charge not levelled against him

Justice Karin Emerton seems to be emerging as one of the Supreme Court’s specialists in what I call the law about lawyers, much of which is found in the Legal Profession Act 2004.  Early on in her judicial career, her Honour was assigned to the hearing of the extraordinary suite of matters between the Legal Services Board and David Forster.  Her Honour’s latest characteristically clear and concise judgment in this area of the law (PS v Legal Services Commissioner [2014] VSC 185) was delivered yesterday, in which she allowed an appeal from a disciplinary decision of VCAT’s Legal Practice List. The Victorian solicitor who was the appellant was represented by another  specialist in the law relating to lawyers, Martin Randall, whom I expect was a leading expert in the area before I was born, and a gentleman to boot.  Her Honour set aside VCAT’s decision because it found the solicitor guilty of conduct he was not charged with.  The Commissioner urged her Honour instead to substitute a more appropriate decision, namely that the solicitor was guilty of the charge as drawn, but her Honour said: Wrong way! Go back. Continue reading “VCAT rolled for finding solicitor guilty of a charge not levelled against him”

What does ‘pro bono’ mean? Are ‘semi-pro bono’ costs agreements legally efficacious?

Hidden away in Trkulja v Efron [2014] VSCA 76, at footnote 49, is a little dictum of the Chief Justice and Justice of Appeal Santamaria which explains their Honours’ understanding of the term ‘pro bono’:

‘In current legal practice, the expression ‘pro bono basis’ is understood to refer to the basis where a practitioner offers his or her services on a voluntary basis without any entitlement to or expectation of remuneration.’

Practitioners should, it seems to me, think carefully before describing themselves as acting ‘pro bono’ when their retainers provide for them to be paid out of the proceeds of a costs order made in favour of their client in litigation to be paid by their client’s opponent in the litigation.

There has been uncertainty in relation to the efficacy of a retainer which says ‘I will charge you $300 per hour but will seek to recover it from you only if you obtain an order that the other party pay your costs, and then I will only seek to recover my fees to the extent of the other side’s liability under the costs order’ or any variation of that concept.

The issue was that the indemnity principle requires total party-party costs to be no more than the liability of the person seeking the costs order to their own lawyers for costs.  If the liability depends on the making of a costs order, until the order is made, the liability is nil,  so that the indemnity principle precludes the making of the order in the first place (so the argument goes).   The latest important decision to endorse this reasoning, albeit in dicta, was King v King [2012] QCA 81.

Now if there is a principle which is properly described as ‘flexible’, it is the indemnity principle in costs law and it is a matter of surprise to me that the uncertainty has persisted so long given the obvious desirability from the perspective of access to justice to sanctioning such arrangements.

Happily, the Supreme Court of Queensland recently gave a decision this year which decided as a matter of ratio that an otherwise orthodox hourly rates costs agreement which included the following special condition was efficacious and did not offend against the indemnity principle:

‘No fees will be payable by you unless an order is made by the Supreme Court of Queensland in your favour for the payment of costs and those costs are recovered by us from other parties and any fees charged shall be limited to the amount of costs so recovered.’ Continue reading “What does ‘pro bono’ mean? Are ‘semi-pro bono’ costs agreements legally efficacious?”

Reviews of decisions of the Costs Court’s Judicial Registrar

The Costs Judge recently clarified the procedure for seeking review of a decision of a Judicial Registrar on a preliminary point of law in a taxation of costs in the Costs Court.  Essentially, his Honour said, the procedure in r. 63.56.2, mutatis mutandis, will generally be appropriate, including the 14 day time limit referred to in it.  In relation to this kind of decision of a Judicial Registrar, the review goes straight to the Costs Judge, unlike in the case of rulings upon items in a bill of costs during the taxation proper, where there is a bizarre requirement for the Judicial Registrar to reconsider her own decision before it may be appealed to the Costs Judge. Continue reading “Reviews of decisions of the Costs Court’s Judicial Registrar”

SCNSW’s Nine Commandments of Interlocutory Applications in a Civil Procedure Act world

In Tugrul v Tarrants Financial Consultants Pty Limited [No 5] [2014] NSWSC 437, Kunc J, deciding the fifth interlocutory matter in a proceeding, gave a warning to the profession about the need to try hard to resolve interlocutory skirmishes including picking up the telephone.  It was a little reminiscent of the Victorian Court of Appeal’s fulmination in Yara Australia Pty Ltd v Oswal [2013] VSCA 337.  An applicant for security for costs against individual opponents was ordered to pay the costs of the unsuccessful application forthwith and on an indemnity basis. His Honour’s Nine Commandments were:

  1. How do these dicta and the requirements of ss 56 and 59 of the CP Act translate into practice when interlocutory issues arise, including such matters as amendments, strike outs, discovery and security for costs? Assuming compliance by the practitioner with the relevant professional conduct rules, nine points may be made by way of general, practical guidance. Nevertheless, the variety of circumstances confronted in practice means that what follows cannot be exhaustive.
  1. First, it must be emphasised that s 56 of the CP Act and its related provisions are not just pious exhortations to be acknowledged and then ignored. They have real consequences for the clients and lawyers in this Court and are to be applied rigorously in the conduct of all litigation, great or small.
  1. Second, solicitors and barristers are members of a profession. It is of the essence of a profession that relations between its members are characterised by civility, trust and mutual respect. The Court sees far too much correspondence between lawyers that bears none of those qualities. They must never be abandoned at the behest of clients or in the misguided belief that that is what successful representation of a client requires.

Continue reading “SCNSW’s Nine Commandments of Interlocutory Applications in a Civil Procedure Act world”

VSCA orders solicitor director of incorporated legal practice to pay costs personally because veil ‘gossamer thin’

Lillas and Loel Lawyers Pty Ltd v Celona [2014] VSCA 70 is just a little decision about the costs of an appeal, but it seems to me to be interesting indeed. That is because the Court was prepared to look through the ‘gossamer thin’ veil between James Loel and Lillas and Loel Lawyers Pty Ltd, a $2 company and — presumably — an incorporated legal practice, of which he was the sole director and, through another company, the owner.  The Court ordered the director to pay personally the costs order made in favour of the firm’s former client in the appeal.  The firm’s website suggests that the firm today is no one-man band, listing two employee solicitors and one law graduate. Continue reading “VSCA orders solicitor director of incorporated legal practice to pay costs personally because veil ‘gossamer thin’”