A defendant seeking in Victoria to join a concurrent wrongdoer need not establish a prima facie case by evidence

Here is a link to a presentation by Ross Macaw QC on proportionate liability.  It is produced by benchTV, an enhancement to the long-excellent new case notification service, Benchmark, provided by AR Connoly & Co in Sydney.  Mr Macaw considers Justice John Dixon’s beautifully written judgment in Fabfloor (Vic) Pty Ltd v BNY Trust Company of Australia Limited [2016] VSC 99.

In that case, there was a fire in a warehouse and the plaintiffs’ goods and nearby land were damaged. They sued the occupier of the warehouse and others.  The occupier said that if it was liable, then it was also the fire inspector’s, the builder’s, and others’ fault as well. The question was what a defendant needed to do in order to have alleged concurrent wrongdoers not sued as defendants by the plaintiffs joined.  Was a mere pleading assertion sufficient, as in the case of a third party notice? Or was it necessary to produce some evidence sufficient to allow the Court to see a prima facie case against the alleged concurrent wrongdoers, and exercise a discretion to join?  Even though those seeking to join are not usually forced to establish by evidence a prima facie case, is that just because it is often waived by the person resisting joinder?

The answer is: you need a pleading which is not hopeless; you generally don’t need to put on evidence; the power to join is in s. 24AL of the Wrongs Act 1958 and the Rules of the Supreme Court are not really to the point; the power is discretionary and evidence might be necessary if some point which goes to the discretion (e.g. prejudice by virtue of delay, or abuse of process) is enlivened, but that evidence would not generally be as to the merits of the claim sought to be brought). Continue reading “A defendant seeking in Victoria to join a concurrent wrongdoer need not establish a prima facie case by evidence”

Costs of a solicitor’s negligence claim which bombed only on causation; costs of the successful solicitor’s unsuccessful proportionate liability defence

In King v Benecke [2014] NSWSC 957, Mr King alleged that his solicitor was negligent.  The solicitor denied everything and lost on all but one issue, namely causation, with the result that the solicitor got judgment and Mr King only Pyrrhic victories.

Mr King argued he should not have to pay all of the solicitor’s costs.  Rather, he argued, he should have his costs of the issues on which he succeeded (duty, breach, the proportionate liability defence), which took up most of the case.

Harrison J only acceded to that argument in one respect.  The solicitor had alleged that Mr King’s solicitors in the professional negligence suit were themselves concurrent wrongdoers against whom some of any liability which might be established against him ought to be apportioned under the proportionate liability regime.  The consequence was that Mr King had to get new solicitors, the plea having put the old ones into a position of conflict between self-interest and duty to Mr King.

The solicitor never adduced any evidence in support of the proportionate liability defence.  His Honour found that Mr King should have his costs of and incidental to it, but otherwise pay the solicitor’s costs of the entire proceeding: Continue reading “Costs of a solicitor’s negligence claim which bombed only on causation; costs of the successful solicitor’s unsuccessful proportionate liability defence”

VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work

Praag v W & T Lawyers [2008] VCAT 307 was a rare thing: a case in VCAT’s Legal Practice List actually prosecuted pursuant to the Legal Profession Act, 2004. Mr Praag was his late mother’s executor. Before her death, she lived in Canberra. Her assets were a house in Canberra and $50,000 cash. Mr Praag went to the respondent solicitors who said they would get probate of the will for $2,800. The scale cost for doing so was $499. They did not otherwise comply with the costs disclosure regime in the Legal Profession Act, 2004. In fact it was unnecessary to get probate in Victoria, and it would have been better to have got it in the ACT. Though Mr Praag was able to withdraw the cash from the Bank with the Victorian parchment, he was unable to deal with the house unless he resealed the probate in ACT, which cost a bit extra on top of the cost of getting probate. Member Butcher mentioned several ‘concerns’ he had before concluding: Continue reading “VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work”

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”