Roisin Annesley’s Victorian Barristers’ practice guide

The Bar has produced a practice guide. It is a great achievement and stands as a beacon for the Law Institute’s future efforts at promulgating knowledge of the practice rules. The Bar actually has something called the Professional Standards Education Committee. Written by Roisin Annesley, it was launched by Victoria Marles, the Legal Services Commissioner on 18 October 2006, and distributed free to every member of the Bar. Annesley has done a lot of work as Counsel Assisting the Legal Profession Tribunal (and continues to do occasional work assisting the Legal Practice List at VCAT). A doyen of professional discipline, Paul Lacava SC, and a judge who has excoriated Professional Standards, Justice Gillard, are credited with substantial involvement. It has chapters on: Continue reading “Roisin Annesley’s Victorian Barristers’ practice guide”

A complaint for every 6 solicitors last year in England

Here is an article from that most excellent of newspapers, England’s The Guardian, which notes that:

  • the Law Society received 17,074 complaints, one for every six solicitors in England and Wales last year;
  • that was up 14% on 2002;
  • a third of people think they receive poor service from their solicitor;
  • a quarter of those surveyed think their solicitor doesn’t listen to their opinion;
  • a third don’t feel they are told enough about how much they will be charged;
  • more than half the people surveyed said they received no pre-estimate of fees at all; and
  • only about a quarter said they got one in writing.

Costs disputes in England apparently progress through firms’ internal dispute resolution mechanisms, to the Consumer Complaints Service at the Law Society, and then, if the punter is so minded, for review by the Legal Ombudsman. The complaint form used is interesting. It seeks the details of the complainant and the subject of the complaint and says “Please tell us the name and address of the solicitor you are complaining about and briefly state your complaint. (We will contact you later for more details.)” next to a box the size of a postage stamp. That is a sensible approach. I have seen hundreds of complaints. Though Victoria’s regulators were required until recently to give reasonable assistance to complainants in formulating complaints, I do not believe they ever did so. I have seen a case where a man requested assistance and it was flatly denied.

Another unrepresented lawyer bites the dust in WA

The lessons against self-representation in discipline cases are coming almost too thick and fast for me to digest them. Here is The West Australian‘s short article on the striking off recently of Vijitha De Alwis, a solicitor who played a part in a legal saga involving an attempt to deport a non-citizen Briton convicted of crimes, Mr Taylor. The Full Bench of the Supreme Court of Western Australia struck De Alwis off the roll of practitioners on 29 September 2006 in Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 following a report by the Legal Practitioners Disciplinary Tribunal. It is a case about receiving trust monies without holding a trust account, like the Victorian case in this post, but it is as much a case about a self-represented person shooting himself in the foot by:

  • serial non-compliance with rules and orders;
  • repeated bias applications (he said the Legal Practitioners Discipline Tribunal “descended to the dust of the Arena and blinded itself”); and
  • repeated ill-got-up adjournment applications on health grounds (one was based on a medical certificate in the following terms: “This gentleman suffers from numerous medical problems and is currently unfit to stand trial or an inquiry”; on another occasion “He said that he had medical advice to the effect that, if he continued to handle his case he ‘might end up having a severe Heart Attack or a massive Stroke that will be fatal’).

One of his problems was that there was ample evidence of him appearing in courts as advocate (or attempting to) at around the same times as he said he was unable to face trial in the proceedings against him. Another was that his written submissions as to why he was too ill to make written submissions disproved what they sought to argue (see [100]). The Full Court said:

“111 … the practitioner’s unfitness for practice is amply demonstrated, in addition, by the manner in which he has conducted himself in these proceedings. His affidavits have been replete with argumentative material, often including allegations of gross misconduct against judicial officers, practitioners and court staff, none of which appear to have any foundation. Moreover, as will be apparent, he has repeatedly failed to comply with time limits and directions imposed by the Court.” Continue reading “Another unrepresented lawyer bites the dust in WA”

No problems with right to costs contingent on recovery from other side on costs order?

Update: 9 February 2008: A good wrap up of the American debate here at Legal Blog Watch.

Original post: In Wentworth v Rogers [2006] NSWCA 145, the NSW Court of Appeal seemed to pave the way for a future declaration as to the efficacity of a costs agreement that says the solicitor will get paid only if the client recovers costs from the other side, and only to the extent of that recovery, so long as there is some lip service paid to a residual obligation in the client to pay the lawyer regardless. Until I read this learned judgment I thought perhaps I was the only doubting Thomas in the world who thought that these agreements, increasingly de rigeur amongst the more switched on pro bono set, had their problems. So I was glad to see that the problems were recognised, and even more glad that such costs agreements seem likely in the future to be certified¬† kosher. Continue reading “No problems with right to costs contingent on recovery from other side on costs order?”

A little case about costs against lawyers personally in NSW

I posted a few days ago about the differences between the Victorian and NSW regimes for ordering costs against solicitors personally.

In Deputy Commissioner of Taxation v Rollason [2006] NSWSC 1032, the defendant consented to judgment with costs at trial having advised the Commissioner’s solicitors more than a month beforehand, confirmed 3 days beforehand, that the matter was unlikely to be defended. There was accordingly non-compliance with the pre-trial directions. The Court was in the dark about what was going on. Justice Gzell said the proper course in the circumstances would have been to apply to vary the pre-trial directions or seek the stay of the proceedings. The Court was inconvenienced in arranging its business. Justice Gzell required the defendant’s barrister and solicitor to show cause why they should not pay the costs thrown away by virtue of their non-compliance with the orders personally. Continue reading “A little case about costs against lawyers personally in NSW”

Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction

It has to be said that De Sarro’s Case [2006] VCAT 1924 is about as boring as they come, a costs dispute about whether a quote of $400 plus GST was for the whole conveyance or only for preparation of the vendor’s statement. Apart, that is, from the unusual feature that Ms De Sarro apparently went through the Professional Standards costs dispute process, got her permission to refer the matter to VCAT, but then decided to proceed to VCAT not on the basis set out in her permission letter under s. 128 of the Legal Practice Act, 1996 (or its correlate in the Legal Profession Act, 2004) but by instituting a proceeding in VCAT’s civil jurisdiction under the Fair Trading Act, 1999.

The solicitor won this contest on the facts, and it seems no one raised the question of whether the solicitor’s services were prepared in trade or commerce.

It seems from the catchphrases noted in Austlii, that the application was pursuant to s. 108 of the Fair Trading Act, 1999. That says VCAT may hear and determine a “consumer-trader dispute”, defined to include a claim in negligence arising between a purchaser (being the person to whom the services are supplied) and a supplier of services, including the performance in trade or commerce of work of a professional nature. VCAT’s powers include ordering in-house mediation, ordering compensation, exemplary damages and interest, ordering payments by way of restitution, rescinding, rewriting, rectifying, or declaring void contracts or terms of contracts, granting injunctions, and ordering specific performance. Continue reading “Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction”

Melbourne solicitor charged with contempt

As reported in the Sunday Age, a Melbourne solicitor successfully sued four policemen who bashed his client and broke her jaw (see the photo in the article, and, to balance the books, see the mobile phone footage of youths bashing police here). According to The Age, the story begins, like this:

“two police officers … stopped Ms Horvath, then 21, and her partner, Craig Love, and declared her car unroadworthy. Believing the couple were ignoring the roadworthy sticker, the next day the officers illegally entered their Somerville home. Knowing they did not have a warrant, Ms Horvath ordered them off her property. The officers called for reinforcements. When six others arrived a decision was made to raid the house, breaking down the door if necessary, and arrest Ms Horvath and Mr Love”. Continue reading “Melbourne solicitor charged with contempt”

Costs orders against solicitors

Russell Cocks, a man with a keen interest in legal ethics, and a penchant for cartoon ties, wrote an article in the Law Institute’s Litigation Section Newsletter on costs orders against solicitors in Victoria. It is always difficult to maintain an understanding in this area because the cases seem inconsistent, and are all based on different legislative regimes which themselves keep changing. So an up to the minute analysis is a handy thing. Continue reading “Costs orders against solicitors”

Supreme Court authority on setting aside costs agreements

Update, 21 April 2008: see the decision on appeal: McNamara Business and Property Law v Kasmeridis [2007] SASC 90.

Original post: Kesmeridis v McNamara Business and Property Law [2006] SASC 200 is a decision of a Master of the Supreme Court of South Australia. Decisions in such applications in Victoria are heard by the members of VCAT’s Legal Practice List. The decision, and several related decisions, (i) say that a costs agreement reduced in writing need not be signed by both parties to be a contract in writing as required by the relevant statute, (ii) say that whether a costs agreement is “fair and reasonable” is to be determined by reference to pre-contract conduct, (iii) say that a discretion to charge a premium over and above an hourly rate is easily severable from a costs agreement and does not require the whole agreement to be set aside, and (iv) demonstrate that the courts’ distrust of hourly rate costs agreements is not waning with time.

Though the clients had been defendants in 35 proceedings before the relevant retainer and so “were not as ignorant of the legal system as they might have claimed”, the costs agreement was set aside in part because the solicitors had not explained to their prospective clients that there were other solicitors in Adelaide who would have been willing to do the same work on scale. Continue reading “Supreme Court authority on setting aside costs agreements”

Litigation funding in the news

An article in The Age examines the financial viability of John Walker’s publicly listed litigation funder, IMF. Its share price has varied from 40c to $1.90 in recent times. It is funding 60 cases with a maximum claim value of $1 billion. Walker employs a “17-member team, which includes a clutch of lawyers, debt collectors and former investigators from the Australian Securities and Investments Commission and the fraud squad.”
An article in Lawyers’ Weekly provides a happily brief overview more or less accessible to the lay reader.
The High Court recently gave the thumbs up to litigation funding recently in Campbells Cash and Carry Pty Limited v Fostif Pty Limited [2006] HCA 41.

The transcript and audio for ABC Radio National’s Law Report on the decision begins with the aphorism “Justice is open to all, just like the Ritz Hotel”.

That goddam dictum of Denning about file notes and conflicts of evidence

Many a smug lawyer has grinned at me across a mediation table and trotted out some version received by Chinese whisper of Lord Denning’s typically over-reaching dictum in his dissenting judgment in Griffiths v Evans [1953] 1 WLR 1424 at 1428; [1953] 2 All ER 1364 at 1369 said to prove conclusively that the absence of a file note is a slam dunk for the plaintiff in any contest of evidence between solicitor and client. The dictum was confined to disputes as to retainers; it harks from a species of cases decided long ago on affidavit and not oral evidence; and it is at best a reflection of the public policy in favour of the formality of legal relationships than a principle of evidence. So say the judges in the cases extracted below. Continue reading “That goddam dictum of Denning about file notes and conflicts of evidence”

Fiduciary duties and the sophisticated client

Gee do plaintiffs adore sprinkling a bit of fiduciary duty action into their pleadings against solicitors. Their counsel see it as moon dust. A sophisiticated plaintiff (who had been party to separate litigation which eventually culminated in a High Court case about contractual certainty) tried it on in a somewhat novel way in Equuscorp Pty Ltd v Wilmoth Field Warne (No 3) [2004] VSC 164 but bombed out before Justice Byrne. Continue reading “Fiduciary duties and the sophisticated client”

Common issues with another case in another place a factor in favour of dismissal under s. 136A, Legal Practice Act, 1996

J’s Case [2000] VLPT 3

This decision may stand tenuously for the proposition that the factors favouring dismissal of a dispute under the Legal Practice Act, 1996 on the basis that it would be more appropriately dealt with by a court include the existence of factual disputes common to that dispute and another dispute being heard by another court or tribunal. But it is clear that it was an incidental consideration in the decision to dismiss the dispute. Continue reading “Common issues with another case in another place a factor in favour of dismissal under s. 136A, Legal Practice Act, 1996”

VCAT has no jurisdiction over Family Court fee disputes

VCAT does not have jurisdiction over costs disputes in relation to Family Court cases or to state Magistrates’ Courts exercising the Family Court’s jurisdiction (except to the extent it is exercising jurisdiction under ss 35 or 35B of the Bankruptcy Act, 1966), but does have jurisdiction in relation to costs disputes in relation to Federal Magistrates’ Court proceedings under the Family Law Act, 1975. Continue reading “VCAT has no jurisdiction over Family Court fee disputes”

Legal Profession Tribunal not bound by doctrine of precedent

If authority were needed for this proposition, it is to be found in B’s Case [2004] VLPT 8 where Mr Howell said:

“a member of a tribunal is not bound to follow a decision of a tribunal made by a member of the same standing. Of course, the previous decision should be carefully considered, and it might be regarded as persuasive and followed, but in the interests of certainty in the law it should not be followed if it is clearly wrong. The aim is to correct errors, not to perpetuate them. If it becomes necessary to resolve a conflict between different decisions, that conflict can be resolved by an appeal, or by a decision of a superior court or tribunal in another case, or by amending legislation.”

Winner gets indemnity costs but recovers less when loser proves winner’s costs agreement with his solicitors void

Casey v Quabba [2006] QCA 187

As reported in Lawyers Weekly, the Queensland Court of Appeal said the trial judge should have allowed the unsuccessful party in litigation to call for and challenge the validity of the successful party’s costs agreement with his solicitor in a party-party taxation of costs on an indemnity basis. Further, the judges found the successful party’s costs agreement was void for failure to specify the minimum requirements fora costs agreement, and ordered the costs to be taxed on the basis that there was no valid costs agreement (presumably by reference to the court scale). Don’t get too excited though; the case turned in part on the facts that (i) the taxing officer was directed by the rules of court to have regard, in indemnity costs taxations, to the costs agreement of the successful party, and (ii) the purpose of the Queensland provision was not only to benefit the client party to the agreement, but also to protect third parties affected, such as those against whom costs orders are made.

But I do wonder whether any thought was given by the successful party and the solicitors hastily putting together a valid agreement with retrospective operation. I can see no reason why it should not work.

Continue reading “Winner gets indemnity costs but recovers less when loser proves winner’s costs agreement with his solicitors void”

WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad

Legal Practitioners’ Complaints Committee v SJB [2006] WASAT 201

It is a serious crime in Western Australia to advertise in a way calculated to cause a person make a personal injury claim. A solicitor ran ads headed “Injured in a road accident and made a claim? If so, read on. [footnote: If you have not made a claim, disregard this advertisement.]” A narrow construction of the provision was adopted, consistent with the seriousness of the offence it created, and no breach was found. But not enough was done to explain “No compensation = No legal fees” and the misleading nature of those words amounted to unprofessional conduct as a falling short of the standard of conduct observed and approved by members of the profession of good repute and competence. Continue reading “WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad”

Multiple claims and the $15,000 limit on power

Tweed on behalf of National Exchange Pty Ltd v Griffin Law Firm [2006] VCAT 1305

A solicitor was retained to pursue parties for breaches of contract involving small sums. He fell into dispute with the client in relation to fees in 376 such matters. Mr Howell found there were 376 separate disputes each for less than the jurisdictional limit so that he had jurisdiction, and refused an application for dismissal under the power to dismiss disputes which would be more appropriately heard by a court. Continue reading “Multiple claims and the $15,000 limit on power”

Epic battle re trust monies results in misconduct finding against barrister

Victorian Bar Inc v DAP No. 6 [2006] VCAT 1226

A barrister banked $50,000 into his personal account, arguing that it was a “retainer” and not monies held on account of future fees. VCAT found that it could not have been a retainer because that is a modest fee paid to a barrister to prevent them from acting against the payer, and the barrister already could not act against the complainant at the time of the payment because of his close involvement as his counsel over many years prior to the payment. The difference between “wilful” and “reckless” breach of the Legal Practice Act, 1996 or rules of conduct was explained. The interlocutory decisions in this matter were digested earlier. Continue reading “Epic battle re trust monies results in misconduct finding against barrister”