Rules relating to unjustified allegations of fraud, etc.

This post, based on research by Zoe Dealehr, collects together the various Bar conduct rules around Australia relating to the requirement of a proper factual foundation for making allegations of criminality, fraud and other serious misconduct as well as for allegations in litigation more generally.

First of all, the relevant Victorian rules are set out.  They are more detailed than the other states’ and territories’ rules.  Apart from Tasmania’s, the rest of Australia’s conduct rules for barristers are almost uniform and are similar to, but different from Victoria’s.

Tasmania appears to have no conduct rules on the subject, but it is said that it is soon to adopt the national rules which are the foundation for the non-Victorian rules.

Continue reading “Rules relating to unjustified allegations of fraud, etc.”

The costs consequences of failing to prove a responsibly advanced allegation of fraud

The irresponsible advancement in litigation of allegations of fraud undoubtedly triggers the jurisdiction to award indemnity costs and even to make personal costs orders: White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, approved on appeal at (1999) 87 FCR 134, discussed in this post.

But what about responsibly advanced, but ultimately unsuccessful, allegations of fraud? In a leading case, Woodward J said:

‘It is sometimes said that [special] costs can be awarded where charges of fraud have been made and not sustained; but in all the cases I have considered, there has been some further factor which has influenced the exercise of the court’s discretion: for example, the allegations of fraud have been made  knowing them to be false, or they have been irrelevant to the issues between the parties’.[1]

That statement has been followed subsequently and, in my view, very likely represents the law in Australia.[2]

Nevertheless, it is possible to find statements made, apparently without consideration of Woodward J’s observation, in cases[3] and commentaries which appear to say that the mere failure of a fraud allegation justifies departure from the usual rules of thumb in to costs. Professor Gino Dal Pont’s outstanding Law of Costs speaks of ‘the “rule” that a party alleging but failing to prove fraud is deprived of costs even if successful in the action generally’ without citing Australian authority, before suggesting that it is too broadly formulated.[4]

Conduct rules often require lawyers in Australia to make allegations of criminality, fraud and other serious misconduct only after having warned their clients of the consequences of doing so and obtained specific instructions to go ahead and make the allegations (e.g. Victorian Bar Conduct Rules, r. 34).  Quite what such an advice ought to contain is, I suspect, not immediately apparent to most lawyers.  Conceivably, uncertainty about the content of this obligation, and fear about costs consequences even in the absence of misconduct on the part of those responsibly advancing fraud allegations, are matters which contribute to allegations of fraud being made so rarely.  It would be helpful if the law in relation to the consequences of failing in a responsibly advanced serious allegation were clarified and more widely disseminated throughout the profession. Continue reading “The costs consequences of failing to prove a responsibly advanced allegation of fraud”

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

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 getting the wife’s solicitor out of the case.  Those allegations were in fact made in a private prosecution by the husband of the wife’s solicitor for maintenance. Reading the decision, one might think that striking off the rolls was a relatively harsh penalty by today’s standards for the conduct recorded, especially since his client succeeded at committal in having the wife’s solicitor presented for trial.  And also if one believes Mr Clyne’s autobiography where he asserted:

‘Particulars given by the New South Wales Bar Association made it quite clear that it was not part of the charge to say that my advice to prosecute was wrong, or improper.  Indeed, as I have mentioned before, the advice to prosecute Mann was given in writing, by the eminent and respected Sydney QC, Mr Newton, who later became (and still is) a judge of the New South Wales District Court; and no one has ever criticized Mr Newton for his advice.’

But Mr Clyne had done it before and been sternly warned (see CLR 202) and was unrepentant to the moment he was struck off. Further, he was absolutely one out of the box (he will be the subject of a further blog post) and was no doubt regarded as an excrescence on the legal system to be excised at almost any cost.  He went on to irritate the authorities as a professional tax evader and unashamed advocate of tax evasion, writing many books on the subject and others (e.g. Adventures in Tax Avoidance, How Not to Pay Any Taxes, Guilty But Insane) while living a decadent lifestyle which hopped, first class, between hotels in Sydney and his native Vienna.  Like George Herscu, one of the villains in White Industries v Flower & Hart, Clyne spent time in jail, and only avoided spending more time by fleeing America without a passport while on appeal bail.  He seems to have been intelligent and to have had enough charm to be married to a Welsh entomologist who also wrote many rather different books (e.g. Silkworms, All About Ants, and Plants of Prey).  But his autobiography (Outlaw Among Lawyers; the Peter Clyne Story, Cassell Australia, 1981) reveals a thoroughly dishonest if colourful character with very little if any regard for the law. Continue reading “Clyne v NSW Bar Association: the leading case on unfounded allegations”

White Industries v Flower & Hart: unfounded allegations of fraud

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 case which relates to the unjustified pleading settled by Ian Callinan QC and signed by his instructor Michael Meadows, alleging that the builder lied to the developer in relation to the cost of building a shopping centre just north of Brisbane.  It’s a big post, to kick off the year.

Facts (not all drawn from the judgments)

George Herscu died just before Christmas, aged 85. He was the alter ego of a property development group headed up by the Hersfield Development Corporation. According to 4 Corners, he was the biggest property developer in the country. According to The Australian, he lived in a Toorak mansion, owned a Melbourne Cup winner, and was once the third richest man in Australia after Robert Holmes a Court and Kerry Packer, one place ahead of Alan Bond.  He was a millionnaire by 30, and made and lost a fortune of $500 million.  He left Australia for California in 1997 and rebuilt substantial wealth.  Towards the end of his life, he was engaged in bitter litigation with his son, who described him as ready to spend whatever is needed to “crush anyone that stands in his way”.  Ironically, given what follows, Mr Herscu’s lawyers accused the son of mis-using the deposition process.  According to The Australian, they said:

‘Your clients’ continued insistence on trying to push an 80-year-old man with hypertension, a heart condition, failing hearing and many other health problems into a deposition room – having already deposed him for 27 hours – is shocking and wrong.  The only conclusion one can reasonably draw from your clients’ posture is that their litigation strategy involves attempting to subject George Herscu to so much stress and pressure he simply dies. To use the tools of discovery for this purpose is reprehensible, and indeed revolting.’

Very alarmingly, he was asked in those depositions about allegations that he had watered down the beer in a pub. Continue reading “White Industries v Flower & Hart: unfounded allegations of fraud”

The civil and disciplinary consequences of making an allegation of serious wrongdoing without a proper foundation

Friends, I need your help, again.  Certain promises I made to write about and present on the civil and disciplinary consequences of making allegations of serious wrongdoing (e.g. fraud) without a proper foundation are coming home to roost.  I’m looking at:

  • disciplinary sanction of lawyers via Legal Services Commissioner, etc. prosecution;
  • personal costs orders against lawyers;
  • costs consequences for parties (common law in relation to exercise of the unfettered discretion re solicitor-client rather than party-party costs and displacing the presumption that costs follow the event where allegations of fraud are not made out, and Civil Procedure Act 2010 (Vic.)); and
  • what is a ‘proper foundation’?

My miserable situation in this season of sun, frivolity and child-minding is a need to work out what these consequences are so that I can provide learned disquisition.  In the process I have learnt something about Dr Peter Clyne, the protagonist of Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40.  What a wonderful addition to my knowledge of the rogues’ gallery of which I consider myself a connoisseur; I even bought his autobiography on eBay today but his ‘How Not to Pay Your Debts’ is still available.  The Hikers described his conduct during the course of an ‘orgy of litigation’ between his client, the husband, and the wife as ‘irresponsible’, ‘mischievous’, ‘objectionable’, indefensible, ‘inexcusable’, and, rather wonderfully I think, ‘monstrous’.  A unanimous Dixon Court confirmed the good doctor’s striking off.  You can read about his life afterwards, including as a Magistrate in Zambia, here, and possibly less reliably, here.

So here is a general call-out for good authorities on these questions, especially decisions which really assist in understanding what a ‘proper factual foundation’ is, since many authorities relate to allegations which are so obviously unsustainable that they do not really illuminate where the line lies between the merely poor and the truly discreditable argument (Clyne), or proceed on the basis of admissions (AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02), or are fantastically complicated (the case just referred to and Victorian Bar Inc v CEM QC [2006] VCAT 1417).  I would also be very grateful for any detailed commentaries on this aspect of the conduct rules for solicitors and barristers alike, and Australian decisions in relation to costs (since many of those cited by Dal Pont are Canadian or English).

Legal Services Commissioner’s obligations of fairness

I have previously reported Justice Finkelstein’s views about the obligations of those who prosecute proceedings for a penalty (‘‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’). Barristers who are briefed by the Legal Services Commissioner in disciplinary proceedings have the same obligations as barristers briefed to prosecute criminal proceedings.  But until tonight I was unaware that VCAT’s predecessor, the Legal Profession Tribunal, had actually indicated that the regulator himself (as opposed to his lawyers) owe obligations.  In Victorian Lawyers RPA Ltd v Kaine [2001] VLPT 16, Senior Member Howell,  Victoria’s most experienced decision maker in legal disciplinary matters, said of the Law Institute (which was for a while formally named ‘Victorian Lawyers RPA Ltd’) that it owed:

‘the obligations normally owed by a prosecutor, such as the obligation to bring to the attention of the Tribunal or to the attention of the practitioner any evidence that might be favourable to the practitioner’.

Continue reading “Legal Services Commissioner’s obligations of fairness”

Making allegations against fellow practitioners

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 honest belief that she had a reasonable basis for making them: Legal Profession Complaints Committee v in de Braekt [2011] WASAT 1.  She was recently struck off: [2013] WASC 124.

A panel provided over by a judge of Supreme Court of Western Australia and President of WASAT, Justice John Cheney, said in the earlier decision:

‘107 Legal practitioners should be slow to make allegations of impropriety against other legal practitioners or their client. Such allegations should not be made unless there is a reasonable basis upon which to make them. The same can be said of allegations of abuse of process. It is apparent that the impropriety asserted by Ms in de Braekt was based upon her view that, having regard to the various matters upon which she relied, the winding up proceedings amounted to an abuse of process.’

I am looking at another matter at the moment in which a complaint has been made to a Legal Services Commissioner by one of the lawyers for one party to extant litigation against one of the other party’s lawyers, in relation to conduct which is itself the subject of the civil proceedings and which is in fact said to have generated the information on which those proceedings are founded.  Even if the disciplinary complaint is stayed pending the exhaustion of appeals from the civil proceedings, it seems to me that the propriety of making a complaint in such circumstances is doubtful.  Does anyone have any views, or — better — authority on the question?

VSCA restates practitioners’ duty of honesty to Court

In Forster v. Legal Services Board [2013] VSCA 73, Kyrou AJA, with whom Weinberg and Harper JJA agreed, restated briefly the law which requires lawyers to be absolutely honest in their dealings with Courts:

‘161 In Meek v Fleming,[85] Holroyd Pearce LJ agreed with the proposition that while a lawyer must not knowingly mislead the Court as to the facts or the law, he or she may put such matters as he or she believes will best advance the client’s case.[86] A party need not reveal something to the discredit of that party. However, this does not mean that the party can by implication falsely pretend that a particular state of affairs exists, and knowing that the court has been misled with respect to a material matter, foster and confirm the misrepresentation through answers given by the party.[87] A lawyer who is a party to the presentation of evidence or the making of a statement to the court that is partly true, but which does not amount to the whole truth, can create a misleading impression to the Court and thereby breach his or her duty to the Court. Once a misleading impression has been created, even if innocently, the lawyer has an obligation to correct that impression as soon as he or she becomes aware of the true position.[88] That obligation continues until judgment is given.[89] Continue reading “VSCA restates practitioners’ duty of honesty to Court”

Victorian Court of Appeal reiterates deprecation of unilateral communication with the Court after hearing by the filing of ‘supplementary submissions’

Frugtniet v Law Institute of Victoria [2012] VSCA 178 is the latest in the saga of a man with a Bachelor of Laws and a Master of Laws who has twice applied unsuccessfully for admission to the profession because of a failure to disclose his criminal convictions.  He had a degree of success in an appeal from a decision of the County Court.  But he became dissatisfied with his counsel after the hearing of the appeal and lodged an 18 page ‘Further Submission’ without leave, and without seeking leave.  The Court paid no attention to them and determined the appeal without further notice, saying the time for submissions is at the hearing.  One comes across this issue frequently, and you are probably sick of me banging on about it, but the other day I saw a litigant who should have known better just tack on to its submissions (which it had leave to file) a statutory declaration by way of supplementation of the evidence, many days after the end of the trial, and noting in the submissions that if the Tribunal was likely to find the evidence determinative, then it would like to make an application for leave to tender the hearsay into evidence.  Here is how the Court of Appeal fulminated unanimously in Mr Frugtniet’s case: Continue reading “Victorian Court of Appeal reiterates deprecation of unilateral communication with the Court after hearing by the filing of ‘supplementary submissions’”

WA solicitor’s unilateral communication with judge’s associate was professional misconduct

It may be professional misconduct for a party’s lawyer to communicate with the judge’s associate (or, of course, the judge) without her opponent’s consent if the purpose of the communication is to influence the conduct or outcome of the case: Legal Profession Complaints Committee v NKC [2012] WASAT 77 at [147] et seqIn this solicitor’s case, the disciplinary tribunal said the unilateral communication amounted to ‘a substantial failure to reach the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner’.

Victorian solicitors’ conduct rules say at r. 18.5

‘A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

1. the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or

2. the opponent has consented beforehand to the practitioner communicating with the court in a specific manner notified to the opponent by the practitioner.’

I know of at least one complaint to the Legal Services Commissioner against a Victorian barrister for filing supplementary submissions after the close of argument which was found made out but not prosecuted.  The appropriate response, in the event that this increasingly common wrong is perpetrated against your client is to write and request consent to a reply, and in default of an appropriately timely consent, apply for the relisting of the matter to complain in open court.

The rule was recently reiterated by the Full Federal Court in Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164, albeit from the perspective of what a judge should and should not do: Continue reading “WA solicitor’s unilateral communication with judge’s associate was professional misconduct”

Prosecutors’ obligations in criminal and disciplinary cases

The late Renee Rivkin’s chauffeur Gordon Wood was recently acquitted by the NSW Court of Appeal of pushing his girlfriend Carolyn Byrne off a cliff at Sydneysiders’ favoured spot for suicide, The Gap: Wood v R [2012] NSWCCA 21.  He spent more than three years in jail.  The Court was not terribly impressed by the conduct of the prosecutor.  It provided a handy restatement of the obligations of prosecutors in criminal cases.  At least insofar as the obligations referred to by the unanimous Court are sourced in the Bar’s conduct rules and are equivalent to Victoria’s obligations, Victorian barristers prosecuting disciplinary cases have the same obligations by virtue of the definition of ‘prosecutor’ and ‘criminal proceedings’ in the Bar’s conduct rules (r. 9(f)).

Here is what McClelland CJ at CL said: Continue reading “Prosecutors’ obligations in criminal and disciplinary cases”

The delicious perils of qua; on suing yourself

Update: I knew that the study of autolitigation would be nicely developed somewhere. Former barrister Malcolm Park brought to my attention his article that was published in (Winter 1992) 81 Bar News 79-80, ‘On Both Sides of the Record’:

‘It is accepted law that a person cannot appear as plaintiff and defendant in the same proceedings. Our wandering reporter, Mal Park, has discovered that even apparently trite law is not of universal application. Sheriffs and even lawyers, like pop stars, may sometimes appear on both sides of the record. Continue reading “The delicious perils of qua; on suing yourself”

More on the need for specific instructions before commencing proceedings on behalf of others

Update: See now Doulman v ACT Electronic Solutions Pty Ltd [2011] FMCA 232.  A solicitor accepted instructions from a fellow solicitor to recover fees allegedly owing by a client.  The proposed plaintiff was a company which the fellow solicitor had until shortly before the retainer been authorised to represent.  The solicitor, acting honestly, accepted these instructions from the fellow solicitor at face value: the proposed plaintiff was well known to him.  He found out only far down the track that the proposed plaintiff had been sold by the fellow solicitor before the instructions were given so that the solicitor had instituted litigation and bankrupted the defendant when he had no instructions to do so from the company.  The proceedings were a nullity.  Everything had to be unravelled.  The solicitor was ordered to pay the costs of this exercise on a party-party basis: he should have done a company search or sought written confirmation of the fellow solicitor’s authority to bind the company. There is a one-paragraph note of the case at ALJ vol 85 no 9 (September 2011) at 537.  Thanks to the Law Institute Library through the LIJ’s ‘In Reference’ page for bringing the case to my attention.

Original post: I had to look hard recently at the cases about lawyers’ obligation to have proper instructions before commencing proceedings on behalf of others. Pretty obvious really, but the grey area exists where lawyers receive instructions from agents of the client, especially where the agent is specifically authorised to retain solicitors, but not specifically authorised to commit their principal to litigation.  Victorian disciplinary tribunals have dealt with such conduct by meting out penalties ranging from a fine of $1,000 in 2011 money to recommending that the practitioner be struck off the rolls.  As this astonishing divergence of dispositions attests, everything depends on the precise facts and the motivations of the practitioners.

Further to this related post, what follows is my case notes of the three Victorian disciplinary decisions I am aware of dealing with this form of conduct warranting discipline.  Are you aware of any similar cases in Victoria or elsewhere? Continue reading “More on the need for specific instructions before commencing proceedings on behalf of others”

Plaintiff’s barrister restrained from acting after communicating directly with defendant

Allison v Tuna Tasmania Pty Ltd [2011] TASSC 52 is a case decided on the rarest ground for restraining a lawyer from acting, namely that ‘A fair minded reasonably informed member of the public would conclude that the proper administration of justice requires that the lawyer be prevented from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.’ The leading case in Victoria is Grimwade v Meagher (1995) 1 VR 446, which was relied on by Holt AsJ.

A Queensland barrister acted for the plaintiff in Tasmanian litigation on a no-win no-fee basis.  He was in financial difficulties, owing a lot of money.  He had a social relationship with the plaintiff and stayed at his home.  He arranged to meet the defendant alone over lunch without the consent of anyone in the defendant’s legal team. This was contrary to r. 51 of the Queensland 2011 Barristers’ Rules, and amounted to ‘misconduct’. The barrister told the defendant, in the 20 minute meeting, that he thought the plaintiff would recover about $25 million from the defendant but he could convince the plaintiff to settle for $2 million.  He said initially he did not involve the defendant’s solicitor because he did not trust him, without advancing any rational basis for the lack of trust, but later said that he let his emotions get the better of him.  In combination these factors proved that the barrister lacked the independence and objectivity necessary to represent the plaintiff without bringing the administration of justice into disrepute, and the Supreme Court of Tasmania restrained him from acting further.

The application was made within the original litigation, and the order was as follows:

‘[The barrister] is to provide no further legal services, paid or unpaid, direct or indirect, in connection with the action.’

WA soli disciplined for recklessly misleading Family Court

Update, 22 September 2011:  Here is the penalty decision.  The Complaints Committee argued for a report to the Supreme Court recommending striking off, but the Tribunal found that was not necessary and imposed a $20,000 on top of a costs order of about $18,000. But for the fact that the former solicitor was, at the time of the decision, a Registrar of the Family Court, the Tribunal would have considered a suspension, but as the job did not require a practising certificate, such an order would have no practical effect.

Original post: Western Australia’s State Administrative Tribunal has put out a substantial decision about misleading the court by silence: Legal Profession Complaints Committee and SMV [2011] WASAT 118.  Something tells me I won’t get around to blogging it properly any time soon, so here is the link and the Tribunal’s own summary:

‘The Legal Profession Complaints Committee made a number of allegations against a legal practitioner, Ms Sally Vanderfeen, of professional misconduct in connection with obtaining and attempting to implement consent orders in the family court for the purposes of defeating a claim to specific performance by a third party in relation to one of the properties the subject of the consent orders.

The conduct essentially concerned failure to notify the Court or the third party of the orders and of the practitioner’s client’s interest in the property pursuant to those orders. The Complaints Committee also made an allegation that the practitioner had misled the Committee in the context of the Committee’s enquires into the relevant events.

Ms Vanderfeen acknowledged that aspects of her conduct involved ‘serious errors of judgment’, but denied that her conduct was designed to defeat the third party’s claims. The Tribunal reviewed the documentary records of relevant events and concluded that they established that Ms Vanderfeen’s actions were motivated by an intention to improve the prospects that the third party would not pursue a claim for specific performance, and that the Complaints Committee’s allegations in relation to those matters were established.’

Lawyers’ Civil Procedure Act duty to correct opponents’ misapprehensions

A judge of the Supreme Court of NSW has reiterated that litigation is not a game, and foreshadowed the possibility of a personal costs order against lawyers for a respondent who took improper advantage of their opponent’s ignorance of a provision in the Corporations Act, 2001. The provision terminates proceedings for winding up in insolvency 6 months after their issue, unless a court otherwise orders.  They took advantage by agreeing to proposed consent orders providing for an interlocutory timetable pursuant to which the proceedings would be brought to a premature end before trial, without pointing that pitfall out to the other side.  Justice Richard White’s comments in
In the matter of Fratelli’s Fresh Pasta Pty Ltd [2011] NSWSC 576 at [18] to [26] follow below.  Note that his Honour expressly drew upon s. 56 of the Civil Procedure Act, 2005 (NSW), which provides:

‘(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.

(4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty identified in subsection (3) or (3A) [to further the overriding purpose and to take reasonable steps to resolve or narrow the issues in dispute]:

(a) any solicitor or barrister representing the party in the dispute or proceedings

(5) The court may take into account any failure to comply with subsection (3), (3A) or (4) in exercising a discretion with respect to costs.’ Continue reading “Lawyers’ Civil Procedure Act duty to correct opponents’ misapprehensions”

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

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 embarrassing them. His Honour said:

‘The proper purpose of seeking a sequestration order against the estate of a debtor is so that a debtor, who is unable to pay his debts as and when they fall due, should have his affairs controlled for the benefit of all his creditors and not just specific ones.  Allied to this purpose is the prevention of the debtor incurring further obligations which he will not be able to meet. It is a public purpose. The bankruptcy process is not to be used for private ends.’

On appeal, the decision was confirmed by the Federal Court’s Justice Marshall.  In Lord v Rankine [2011] FMCA 668, at [20] – [34] (despite the numbering below) his Honour said:

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

Costs of proceedings commenced without a prior letter of demand

In PMCDG Investments Pty Ltd v Monash Gate Project Pty Ltd [2011] VSC 52, Associate Justice Daly accepted a referral from the trial judge, Justice Robson, to decide who should pay the costs of a proceeding the trial of which Justice Robson had presided over. That referral, it seems to me, is an interesting development in itself. Associate Justice Daly was asked to depart from the usual order that the winner get a partial indemnity for their actual legal costs from the losing party, and instead make no order as to costs. It was said that though the plaintiff had succeeded, litigation was not necessary, and that proceedings had been commenced precipitiously. Her Honour did not uphold the submission, but did usefully digest a number of authorities on point: Continue reading “Costs of proceedings commenced without a prior letter of demand”

Counsel’s discretion as to trial tactics

Joseph Vella purchased a knife and a black beanie and then turned up to his estranged wife’s door two days later in their company.  In his quiver he also sported a baseball bat.  He bashed her head in with the bat and then slit her throat with the knife.  Charged with murder, he admitted the acts, but his defence was that he had gone to the wife’s home to tell her that he would take the kids on New Year’s Eve so she could go out, but that she had provocatively told him that he would never see his kids again, whereupon — what’s a bloke to do? — he laid into her, though not with the intention of finishing her off.  He was jailed, but appealed to the Court of Appeal and then sought leave unsuccessfully to the High Court.  His appeals raised aspects of his counsel’s conduct of his defence, apparently the same ones focussed on in the disciplinary complaints referred to below against his counsel.

Appeals exhausted, Mr Vella turned his attentions to his lawyers.  He lodged a disciplinary complaint about the prosecutor.  The Western Australian disciplinary body did not lodge a prosecution as a result and Mr Vella sought a review of that decision.  He failed: Vella and Mactaggart [2011] WASAT 28.  Interestingly, the prosecutor represented himself before the disciplinary tribunal.  Mr Vella lodged a disciplinary complaint about his own counsel.  Again, the disciplinary body did not lodge a prosecution in response, and Mr Vella sought a review of that decision.  Again he failed: Vella and Bowden [2011] WASAT 56. This time, the barrister retained solicitors and counsel to represent him.  Mr Vella also lodged a complaint alleging overcharging, which gave rise to a taxation. Continue reading “Counsel’s discretion as to trial tactics”

Another reason not to unilaterally communicate with the Court

Unilateral communication with a judge’s associate is a dangerous practice.  Unless it relates purely to procedural matters (and who knows exactly what the limits of that are), any communication with the Court, especially with a judge’s associate should be copied to the other side, or the other side should immediately be informed of it.  In these days of email, what can be the harm in copying the other side in every case?  If you don’t want to do so, you probably should not be communicating with the court.  Apart from the fact that it is improper to communicate unilaterally with the Court, it might give rise to an apprehended bias-based application that the judge recuse her or himself.  In John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34, such an application failed, but the unanimous Full Court pithily stated the law:

Continue reading “Another reason not to unilaterally communicate with the Court”