Stephen Warne on professional negligence, regulation and discipline around the world

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Entries Tagged as 'Abuse of process'

Self-represented solicitor guilty of misconduct for breaching a rule expressed to regulate conduct when acting for a client

May 29th, 2014 · No Comments

A Western Australian disciplinary case, Legal Profession Complaints Committee v CSA [2014] WASAT 57 is interesting in a number of ways. A criminal lawyer was the manager of a strata corporation.  She owned two units and the complainant the third. The complainant affixed an airconditioner to a wall which impeded on a common area.  She […]

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Tags: Abuse of process · Briginshaw · Discipline · Dishonesty · duty to court · Evidence · jurisdiction · litigation ethics · Misconduct · procedure · The suit for fees

Clyne v NSW Bar Association: the leading case on unfounded allegations

February 11th, 2014 · No Comments

Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of […]

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Tags: "disgraceful and dishonourable" · Abuse of process · Alleging fraud & misconduct · Discipline · duty to court · Ethics · Evidence · Legal writing · litigation ethics · Misconduct · prosecutors' duties · Striking off

White Industries v Flower & Hart: unfounded allegations of fraud

January 25th, 2014 · No Comments

This post is a case note of Justice Goldberg’s famous decision in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169; [1998] FCA 806 as well as of associated decisions and surrounding controversy.  Because it is what I am working on at the moment, it concentrates on that part of the […]

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Tags: Abuse of process · Alleging fraud & misconduct · Client Legal Privilege · duties regarding witnesses · duty to court · Ethics · litigation ethics · Professional fees and disbursements · Wasted costs

Making allegations against fellow practitioners

April 13th, 2013 · 2 Comments

I have posted before about the Darwin solicitor whose disciplinary complaint against a fellow practitioner resulted in her being fined $19,500 for making that complaint without a proper factual foundation.  I have just come across another case in which a female solicitor was disciplined for her intemperate allegations against another lawyer, despite having had an […]

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Tags: Abuse of process · Ethics · litigation ethics

Federal Court sets aside bankruptcy notice used for debt collection against solvent individuals as abuse of process

May 19th, 2011 · No Comments

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 […]

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Tags: Abuse of process · duty to court · Ethics · litigation ethics · Professional fees and disbursements · The suit for fees

Fraudster’s negligence claim against appeal counsel permanently stayed as collateral attack abuse of process

July 4th, 2010 · 1 Comment

Update, 16 August 2010: Justice Emerton’s decision dismissing the appeal is at [2010] VSC 351. Original post: In Walsh v Croucher [2010] VSC 296, a convicted fraudster who was, at least in about the year 2000, a bald-faced, opportunistic, calculating and manipulative liar (see R v Walsh [2002] VSCA 98 and R v Walsh [2000] […]

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Tags: Abuse of process · Advocates' Immunity · Barristers' immunity · defences · Forensic immunity · Negligence

‘Snapping on’ judgment in default

December 10th, 2009 · 1 Comment

Update, 1 February 2012: Glen Wright of Tas Legal brought to my attention the case of Gavin Boyle Constructions Pty Ltd v Fabrok Pty Ltd [2011] QDC 214 in which the judge set aside a regularly entered default judgment, but declined to award costs in favour of the plaintiff because it knew, pre-commencement of the […]

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Tags: Abuse of process · Ethics · litigation ethics · Party party costs

The finality of the proceeding stayed pending further order

November 13th, 2009 · No Comments

Stays scare me.  I suspect they attract obscure law that my opponents know but I don’t.  Why does the law need the permanent stay? How is it different from a judgment?  When is a stay a permanent stay, and when not? A solicitor friend who is one of the most experienced professional negligence lawyers in […]

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Tags: Abuse of process · Litigation estoppels

Double jeopardy and disciplinary proceedings

August 12th, 2009 · No Comments

Coke-Wallis v Institute of Chartered Accountants In England and Wales [2009] EWCA Civ 730 considered the application of principles of res judicata and autrefois acquit (the criminal version of the same principle, an aspect of double jeopardy) to disciplinary ‘prosecutions’.  It did so in the context of the disciplining of accountants.  The relevant scheme made […]

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Tags: Abuse of process · autrefois acquit · Discipline · Misconduct · procedure

Vexation

October 5th, 2008 · 1 Comment

An article by Peter Munro in The Age provides a surprisingly sophisticated analysis of the ‘problem’ of vexatious litigants. The unrepresented obsessed do pose problems for the administration of justice. Consider the web of litigation sketched out in Mentyn v Law Society of Tasmania [2004] TASSC 24.

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Tags: Abuse of process · litigation ethics