The Australian Professional Liability Blog
Stephen Warne on professional negligence, regulation and discipline around the world
In Tulloch (deceased) v Braybon [2010] NSWSC 640, a witness was being cross-examined. He answered a question responsively. Then, he added some unresponsive material, and it was argued that this little unexpected and unresponsive addendum meant that it had become unfair to maintain client legal privilege over some associated subject matter. Justice Brereton held that …
Continue reading “The ‘it just popped out’ defence to implied waiver”
In Schulman v Abbot Tout Lawyers (a firm) t/a Abbott Tout Solicitors [2010] FCA 308, a plaintiff sued his former lawyers for misleading and deceptive conduct. At the same time as the misleading representations, which were in the nature of legal advice, were alleged to have been made by them to him, he had been …
Continue reading “Latest decision on implied waiver upon suing former solicitors”
Several recent posts have been about the implied waiver which is said to be an incident of clients suing their former solicitors for negligence. They are simply case notes. Some of the cases are English. All were decided under a law different from that which from 1 January 2010 applies in Victorian court proceedings, a …
Continue reading “Yet another implied waiver case: Paragon Finance Plc v Freshfields (a firm)”
Lawyers Weekly has an article by some folk at Allens noting Justice Branson’s decision in Rich v Harrington [2007] FCA 1987, a mega anti-discrimination suit brought by Christina Rich, a former partner of PricewaterhouseCoopers Australia against the other partners. There are so many privilege cases which come out, it’s hard to know which ones to …
Continue reading “Seems the implied waiver hystericals were right after all”
Lawyers have an obligation proactively to assert and protect the privilege enjoyed by their clients and former clients: Re Stanhill Consolidated Ltd [1967] VR 749 at 752. I wrote about it in this post about the Legal Profession Act 2004 (Vic). Lawyers have no implied or, I would suggest, ostensible authority to waive privilege belonging to former …
Continue reading “Privilege and disciplinary investigations”
In Green v Emergency Services Telecommunications Authority [2014] VSCA 207, the Victorian Court of Appeal today overturned a jury’s verdict following a nine-day trial. There had been a miscarriage of justice occasioned by the manner in which the plaintiff was cross-examined by the defendant’s trial counsel. He had made an allegation of recent invention involving …
They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now …
Continue reading “Changes to legal professional privilege operate retrospectively”
Now I have too many words in my Advanced Evidence paper, so you can have the first off-cut. The uniform evidence legislation is comprised of: The Evidence Act, 1995 (Cth.), which commenced almost 15 years ago on 18 April 1995; The Evidence Act, 1995 (NSW), which commenced on 1 September 1995; The Evidence Act, 2001 …
Continue reading “Basic facts and useful resources about the uniform evidence legislation”
Back from Vanuatu, a pleasant place, I am slaving away at a 10,000 word paper on the application of the Evidence Act, 2008 to civil cases involving lawyers. In due course, no doubt, I will subject you to a serialised version of it. One of the things I am considering is that species of implied …
For the moment, I am taking Advanced Evidence at Melbourne University, and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 is on the reading guide. As it is a case about a lawyer-client dispute, and as it not likely to be at the forefront of reading about legal professional privilege since Mann v …
Continue reading “How would Goldberg v Ng be decided today?”
I reckon Dr Desiatnik is unlucky with the timing of his texts. The first edition of Legal Professional Privilege in Australia was finished when the High Court changed the test for the privilege from a sole purpose to dominant purpose and restated the law of implied waiver. I have always shuddered about the story one …
Continue reading “House of Lords restates law of negotiation (or ‘without prejudice’) privilege”
Here is the latest case about that form of implied waiver of legal professional privilege by a former client plaintiff who sues his former solicitors for negligence: Artistic Builders Pty Ltd v Nash [2009] NSWSC 102. In this case, the plaintiff sued two successive sets of lawyers in the one proceeding. Inspection was granted of …
Continue reading “Latest on privilege waiver by plaintiff in solicitor’s negligence case”
Banjo (NT) Pty Ltd v Ward Keller Pty Ltd [2006] NTCA 1 A tenant alleged its solicitors gave it bad advice on its obligations under a lease which led to it losing the chance to renew the lease. It said it got a new lease, but in order to do so, had to settle disadvantageously …