Today is the end of the CPD year, and the last day of operation of the Victorian Bar’s Continuing Professional Development Rules 2008 in Victoria. They are hard to find now, but you can access them here. The Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 were made on 26 May 2015 and commenced on 1 July 2015. You can access them here. But the relevant Committee of the Victorian Bar recently determined that compliance with the old rules would be deemed to amount to compliance with the new ones for the current CPD year. The page on the Bar’s website with recent CPDs’ videos and other resources may be accessed (by barristers only) here. The most significant (possible) difference between the new and old rules for barristers other than new barristers seemed to be in relation to what amounts to a CPD activity. Under the new rules, a CPD activity must be: Continue reading “Continuing professional development obligations: plus ca change…”
What is the duty of care in tort of a man with florid paranoid schizophrenia?
Some cases are just dead interesting. Dunnage v Randall [2016] 2 WLR 839, [2015] WLR(D) 287, [2015] EWCA Civ 673 is one of them. A man sued the estate of his late uncle for compensation for injuries he suffered when his uncle poured petrol on himself and set it alight. Despite the man’s efforts to prevent this tragedy, his uncle, a sufferer of schizophrenia, died. The man jumped off a balcony to escape, having suffered burns. Now you might think it heartless to sue to the disadvantage of the beneficiaries of the uncle’s estate in the circumstances. But of course there was an insurer to upset the analysis. The uncle was insured under a household policy against liability for accidentally causing bodily injury. It was the insurer arguing that the mad have a different duty of care. The trial judge agreed. The Court of Appeal reversed. Lady Justice Rafferty’s leading judgment is stylish.
Judge puts solicitors’ negligence case on ice pending outcome of High Court challenge to advocates’ immunity
In Cairncross v Anderson [2016] NSWSC 258, Justice Button was asked to summarily dismiss a negligence claim against a solicitor on the basis that it was doomed to fail by virtue of the solicitors having taken the defence of advocates’ immunity. The negligence is said to have arisen in the course of the Great Southern proceedings in the Supreme Court of Victoria. In the course of the decision which the Court made yesterday to put the strike-out motion on ice, part-heard pending the High Court’s judgment, the judge had to assess the likelihood of the law changing. This is what he said:
- First, a reading of the transcript of the special leave hearing establishes that (to use a phrase that I used in discussion with the parties at the hearing) there is a “reasonable circumstantial case” that the High Court will undertake a “root and branch” reconsideration of the immunity.
- Secondly, the parties respectfully predicted that the hearing of the appeal in the High Court would take place in March 2016, and that one might expect a judgment some months after that. Indeed, as at today the hearing in that Court has concluded, and one may respectfully expect a judgment shortly.
- In other words, I think it quite possible that the fundamental legal principles that underpinned the motion placed before me could be subject of significant revision by the ultimate court of this nation within three months or so, and within six months of the hearing of the motion.
I certainly hope that the immunity is abolished or greatly reduced in scope. I am sick of charging people with good cases against litigation lawyers money to tell them that they should not sue, or that if they choose to sue there is a risk that their claim will be struck out with costs.
Just the other day, the Supreme Court of Victoria ruled that a solicitor who failed to tell his client the trial date, failed to prepare any evidence or arguments, failed to brief counsel to appear, and failed to turn up, so that the case proceeded undefended, unbeknown to the client, and the client lost catastrophically, was protected by the immunity in respect of that conduct. The immunity has been held to extend to intentional torts, fraudulent conduct, and a failure to tell a client about a settlement offer which went unaccepted and turned out to be a lot better than the result obtained at trial.
Advocates’ immunity abolished in Victoria and NSW
Ok, so the High Court is still ruminating after the recent hearing of an appeal from Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 in which the immunity was again challenged. And advocates’ immunity was probably already abolished in certain respects in Victoria by the Civil Procedure Act 2010, s. 29 of which gives anyone who suffers loss as a result of a lawyer’s breach of the overarching obligations in litigation a right to seek compensation from the court (but not VCAT) in which the case was conducted. But I just noticed something else not mentioned in any of the submissions, and about which I have heard not the faintest whisper of chatter more generally. Chapter 5 of the new uniform legislation in force in Victoria and NSW allows compensation orders to be made for professional negligence and appears to abrogate advocates’ immunity in relation to those kinds of claims. Section 263(1) of the Legal Profession Uniform Law, which has been in operation in Victoria and NSW since 1 July 2015, says:
‘A provision of this Law or any other applicable law that protects a person from any action, liability, claim or demand in connection with any conduct of the person does not affect the application of this Chapter to the person in respect of the conduct.’ Continue reading “Advocates’ immunity abolished in Victoria and NSW”
Man fails to set aside compromise of taxation of costs despite drunkenness from allergy tablets
A man took 5 times his usual dose of phenergan before a mediation in a Costs Court matter in which he sought to tax his former solicitor’s fees. Represented by a solicitor, he settled the taxation. It is an interesting footnote that the man’s solicitor was from the rather wonderfully named Coolabah Law Chambers, and is described on the firm’s website as follows:
‘Although Jeff has sincere respect for the Bench, he is not afraid to argue and fight for his clients. Jeff believes that each of his clients must be properly represented and must receive a ‘fair go’. To appreciate Jeff’s keenness one has only to learn of one occasion when, during his closing address to the jury, Jeff performed an impersonation of Austin Powers in “The Spy Who Shagged Me”. Jeff’s client was successful in that case!’
The man applied, unrepresented, to the Costs Court to have it set aside on the basis of the solicitor respondent to the taxation had taken unconscientious advantage of his phenergan intoxication in procuring the settlement. The Costs Court referred the question to the Practice Court.
The Practice Court considered whether the determination of a mixed question of fact and law was one which could be the subject of a referral by the Costs Judge for ‘directions’ to a judge of the trial division under r. 63.51. Bell J said it could.
But his Honour ruled that the Costs Court did not have jurisdiction to hear that question and so made the man commence a fresh Supreme Court proceeding for a declaration: [2015] VSC 417. Bell J found that the Costs Court is a ‘statutory court of limited jurisdiction’. That is interesting because presumably when the same work was done by the Taxing Master, the Supreme Court itself would have been exercising its unlimited jurisdiction so the creation of this Costs Court has complicated things.
Bell J found that the Costs Court did not have jurisdiction and so could not refer the proceeding to the Practice Court. The question which, on one characterisation, was whether the Costs Court should enforce a settlement of a Costs Court proceeding at a mediation ordered by the Costs Court was not one arising in the course of ‘assessment, settling, taxation or review of costs’ and so not within the Costs Court’s jurisdiction as described in s. 17D of the Supreme Court Act 1986. Not even within the grant of such additional power to the Costs Court as is necessary to do its job in sub-s. (2). Emerton J’s decision in Gadens Lawyers v Beba Enterprises [2012] VSC 519 about the Costs Court’s jurisdiction was not cited to Bell J, who reasoned:
‘It is true that, in the circumstances of the present case, the issues raised by the application to set aside the agreement are connected with the ‘assessment, settling, taxation or review of costs’ because, in great part, the agreement settled the issues relating to those matters in the Costs Court. But a connection with those matters is not enough. The issues must actually relate to those matters. The issue is not that the set-aside application raises substantive issues of mixed fact and law, which it does, but that those issues do not relate to the ‘assessment, settling, taxation or review of costs’.’
So the man duly commenced a new proceeding which a judge of the Court referred back, perhaps a little paradoxically, to an Associate Justice who was not the Costs Judge for determination. If you’re expecting a happy ending for the doughty self-represented client-plaintiff after this procedural buffeting, I can’t help you. Derham AsJ found that the solicitors had been ignorant of any excema-related intoxication under which the plaintiff laboured and dismissed his application to set aside the settlement: EO v Bolton & Swan Pty Ltd [2016] VSC 91.
The permissible forensic uses of historical mental illness in professional discipline trials
Professor Dal Pont’s excellent text Lawyers’ Professional Responsibility (5th ed., 2013) suggests at [23.145] that mental illness will rarely provide a defence to a disciplinary prosecution, the purpose of which is protective rather than punitive. He argues, in part, that the public needs protection just as much from the mentally ill who do bad things as from the mentally flourishing who do wrong. But that reasoning does not have any application where there is not a temporal proximity between the moment of determining liability and the moment at which the putative wrongdoing occurred. In my experience the glacial pace of disciplinary investigations usually mean that the time for setting sanctions is years after the conduct in question. Very often, I find myself acting for practitioners whose minds are flourishing much more than at the time of their wrongdoing.
I always thought (or perhaps more accurately, hoped) that Dal Pont was a little pessimistic about the possibility of mental impairment being relevant to the determination of the question of whether unsatisfactory professional conduct or professional misconduct is. True, there are some decisions broad statements in which support that position, but the authorities are a bit all over the place, and there are so many different kinds of conduct warranting discipline and so many fact scenarios that it seemed to me that the law must be more nuanced than some of those broad statements suggested.
Last year, VCAT’s Legal Practice List last year ruled, contrary to the position advanced by Victoria’s Legal Services Commissioner, that evidence of mental impairment was relevant to the question of whether conduct was professional misconduct or unsatisfactory professional conduct, and heard evidence from a psychologist during the liability phase of the hearing. The two species of conduct warranting discipline arising from a breach of the rules have traditionally been delineated by enquiring whether the breach was innocent or whether it was deliberate or reckless, so that it clearly incorporates a subjective enquiry. VCAT’s decision to hear the psychological evidence on the question of liability was, as I have learnt in the course of penning this post, consistent with that in New South Wales Bar Association v Butland [2008] NSWADT 120.
Now the Supreme Court of NSW has reviewed the authorities and published a useful decision in the matter of BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 (Adamson J), making clear that mental illness may be relevant to the question of liability, as well as to the question of penalty where it is of course of critical relevance, citing Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977), a decision I have not come across before. Essentially, Justice Adamson said, it all depends on whether there was a mental element to the kind of conduct warranting discipline which is charged. Conduct described as a failure to maintain standards of competence and diligence is not something to which the practitioner’s mental impairment is relevant. In charges which rely on the practitioner having a particular state of mind do require analysis of the degree to which the practitioner’s state of mind was flourishing. Professional misconduct at common law is determined by what competent and reputable peers would think of the conduct. What they would think is affected by the degree to which the practitioner’s mind was flourishing at the relevant time.
Unfortunately for the barrister who was the subject of the disciplinary hearing under appeal in this case, all this meant that though the Tribunal and the Court accepted that her conduct was caused by her psychiatric illness, she was nevertheless properly found guilty of unsatisfactory professional conduct constituted by failing to maintain standards of competence and diligence and acting in the face of a conflict between self-interest and duty to her client. The test for such unsatisfactory professional conduct does not enquire into the mind of the practitioner, the Court found. Accordingly, the psychiatric causation was legally irrelevant.
See also this sister post, about the disciplinary Tribunal’s and the Supreme Court’s willingness to allow the practitioner to change her plea, once after the liability hearing but before the delivery of reasons and once on the eve of the hearing of the appeal.
Lawyers withdrawing ‘guilty pleas’ in disciplinary prosecutions at first instance and on appeal
BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 is the subject of this sister post about the permissible use of evidence of mental impairment. Two aspects of it deserve their own separate post. The respondent barrister changed her plea twice, once after the liability phase of the hearing but before the decision as to liability was given and once the night before the hearing of her appeal in the Supreme Court of NSW. Each time, she was allowed to do so. Continue reading “Lawyers withdrawing ‘guilty pleas’ in disciplinary prosecutions at first instance and on appeal”