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Two new cases from NSW

Here’s a 37,000 word long judgment in a professional negligence case against a solicitor which began in early 2000: Rebenta Pty Ltd v Wise [2007] NSWSC 1332. It does not discuss many issues of law. The reason one might want to look at it is that it is one of those rare cases where a dispute about whether there was one ongoing retainer or several more discrete retainers of a solicitor. The solicitor won after a four and a half week trial.

In The Prothonotary of the Supreme Court of New South Wales v. Sukkar [2007] NSWCA 341, the NSW Court of Appeal engaged in a surprising degree of soul searching before deciding to strike an ecstasy importer cum solicitor off the roll of practitioners. The fact that he gave false evidence in his trial did not assist him. The decision is an interesting illustration of the distinction between a finding of want of good fame and character and a finding of professional misconduct where the conduct in question is unconnected with legal practice. The Court of Appeal’s decision in the criminal appeal is reported at Regina v Sukkar [2005] NSWCCA 54. The importation of 124 kilograms of ecstasy earnt the solicitor 14 years in jail. In relation to the appropriateness of a finding of misconduct where the conduct in question is unconnected with legal practice, Basten J said in separate reasons from the majority: Continue reading “Two new cases from NSW”

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Barrister who signed as witness to pay $10,000

A barrister purported to witness the signature of a wife on a guarantee at the request of his good friend the husband. But he did not witness her signature. Worse, he certified that he had explained the document to her and that she had appeared to understand it. A familiar story. As it happens, the wife suffered no loss, but she says that though she signed the guarantee, she did so under duress. Unbeknownst to the barrister, the couple’s relationship was heading for the Family Court.

The barrister cooperated fully from the outset and admitted his wrongdoing, but the investigation and hearing of the plea still ran up costs of over $5,000. The case is Legal Services Commissioner v MPRT [2007] VCAT 1986, not yet available on the web. The prosecutrix did not submit that suspension was appropriate. The barrister was reprimanded, fined $5,000 with a stay of 3 months, and ordered to pay the Commissioner’s costs

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Leading, senior and respected solicitor convicted over $0.75M fraud suspended till 2013

In Legal Services Commissioner v. RDS [2007] VCAT 1835, a ‘leading, senior and respected member of the profession’ defrauded both his client and the revenue of three quarters of a million dollars.  He had been sentenced to 3 years’ imprisonment, suspended for 3 years, having pleaded guilty in the criminal court.  He cooperated with the authorities, voluntarily handed in his practising certificate, pleaded guilty to misconduct at common law in the charge brought in VCAT by the Legal Services Commissioner, and conceded through his counsel that a substantial period of suspension from practice was warranted. He paid the revenue the money after he was caught. His daughter was ill at the time of the offence. Apparently he has given a  lot of money to charity.  Much was made of this.  Perhaps too much; the sentencing remarks as hagiography form of literature sometimes makes me uneasy. Maybe society’s denunciation of this crime took place in the sentencing remarks of the judge in the criminal case, but there was little by way of denunciation in these reasons. Anyway, the solicitor’s practising certificate was suspended until mid-2013, justified by general deterrence since the solicitor was in Israel, contemplating relocation there and not intending to practise again. A Full Tribunal with Judge Bowman presiding said at [14]:

‘Whether or not [the solicitor] is likely to offend again, and we would be of the view that he is highly unlikely so to do, principles of general deterrence must be borne in mind. There is also the question of the damage that is done to the standing and reputation of the legal profession in the eyes of the public if someone who could be described as a leading, senior and experienced member of the profession engages in fraudulent activity of this kind.’

It seems this was a plea, that there was no contest and full cooperation. The hearing could not have gone longer than an hour or two. It is interesting then that the Commissioner was awarded costs of almost $6,000.

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3 years’ holiday for not making ongoing discovery

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)

A solicitor’s right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence. Continue reading “3 years’ holiday for not making ongoing discovery”

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A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution

Law Institute v KTBH [2006] VCAT 350 (Senior Member Howell)

There were separate disciplinary and negligence proceedings against the solicitor over the same facts. At the end of the disciplinary hearing, and on the basis of the prosecutrix’s submissions, Mr Howell decided to determine the negligence case and get the whole thing over and done with. He found there had been a delay by the solicitor in getting a woman compensation. Though VCAT was not empowered to order interest on the woman’s claim, he gave her Hungerfords damages, that is, damages in the nature of interest, and calculated the damages by reference to the penalty interest rate. This note is critical of that decision.

Continue reading “A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution”