2014: not such a great year (planes, boats, Sri Lanka)

It felt like it was surely the worst year ever for plane crashes.  In fact, many more civilians used to die in aviation disasters each year for a long time, and the figures were even less dramatic when expressed as passenger deaths per million flights. 2014 was actually the year in which there were the fewest fatal civilian passenger airline crashes even though more than 1000 people perished. But planes do not generally go missing, never to be found.  And nice countries like Russia don’t generally shoot them down either, so it was all certainly newsworthy.

Just weeks ago, an Air Asia flight crashed into the sea in Indonesia with 162 people on board.  We will come to the crashes in Ukraine and Algeria later on. Early on in 2014, a Malaysian Airlines plane carrying 239 people  disappeared without a trace.  What to make of the fact that the pilot’s wife reportedly moved out with their children the day before, and that he did not make any social or professional plans for after the flight? the world’s people wondered in an orgy of circumstantial reasoning which never really went anywhere.

In fact, there was a precedent in 2014 for pilots doing strange things. An unarmed co-pilot locked the pilot out of the cockpit while he was taking a leak and diverted an Ethiopian Airlines flight scheduled from Addis to Rome so as to land in Geneva where he sought political asylum.  I can understand why a man might want to get out of the economic proto-powerhouse Ethiopia is becoming 30 years after the famine (it imports 10 million litres of wine): dissidents are not tolerated. But why not just get out in Rome, and seek asylum there, avoiding the likely 20 years in jail for hijacking? Continue reading “2014: not such a great year (planes, boats, Sri Lanka)”

National Costs Lawyers’ Conference: you’re invited

I’m speaking on Friday at the National Costs Lawyers Conference in Melbourne.  My topic is the civil and disciplinary consequences of making serious allegations without an adequate factual foundation.  Obviously, some of those consequences include costs orders.  The Civil Procedure Act 2010 (Vic) takes things further than the obligations imposed on lawyers previously and provides a smorgasbord of hitherto unexplored remedial powers to trial judges and the Costs Court alike.  The new solicitors’ conduct rules which are on their way to Victoria will extend solicitors’ obligations too in small but important ways. Think ‘allegations’ rather than ‘serious allegations’, in fact these days.

$450 gets you 6 CPD points across four categories including (thanks to me) ethics, some lunch and some wine. But you wouldn’t pay all that money just to hear me.  You’d pay it to hear the Supreme Court’s Justice Croft give the keynote address, Dr Sue McNicol SC talk about legal professional privilege in taxations (I’m so waiting to have her authoritatively sort out this hoary chestnut for me), Federal Court Registrars Pringle and Burns on party-party taxations in the Federal Court, a psychologist on professional wellbeing and a panel including Cate Dealehr and two eminent interstate costs lawyers updating delegates on recent cases on costs disclosure and costs agreements.

NSWSC summarises advocates’ immunity in one paragraph

In Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510, a judge of NSW’s Supreme Court decided to summarise the law of advocates’ immunity in one paragraph:

An advocate cannot be sued by his or her client for negligence in the conduct of a case, or for work performed out of court that is intimately connected with the conduct of a case in court. Where a legal practitioner gives advice that leads to a decision that affects the conduct of the case in court, the practitioner cannot be sued for negligence on that account. The immunity extends to work done out of court that leads to a decision affecting the conduct of the case in court. Neither a barrister nor a solicitor may be sued by a client in respect of any conduct in the making of preliminary decisions affecting the way in which the case is to be conducted when it comes to a hearing. The immunity applies to the conduct of a solicitor as well as a barrister if the conduct otherwise qualifies for immunity. There is no difference between instructions given based upon negligent advice and the negligent carrying out of instructions if both are intimately connected to the conduct of the litigation. Advice in relation to the settlement of proceedings that leads to a settlement of a matter during the hearing falls squarely within conduct protected by the immunity. Advice that leads to a settlement prior to a hearing is also covered, whether or not court orders are made.

Ron Baker: Firms of the Future

An American by the name of Ron Baker is coming to town. I am certain I have never seen a mission statement with such a resolutely split infinitive as Baker’s: ‘To, once and for all, bury the billable hour and timesheet in the professions.’  He is a leading exponent of ‘value pricing’, who’s moved out of the accounting world whence he hails into the legal arena.  He has written what are said to be some of the best books on the subject.

Our foremost indigenous enthusiast for the same philosophy, John Chisholm, is quite the disciple, and is helping to publicise Baker’s ‘Firms of the Future’ forums which will feature value pricing heavily, but will predict other aspects of best firm practice.  At this point in my journey towards understanding what Baker’s on about, it is easier to point to what value pricing is not.  As the mission statement suggests, it is not recording time on timesheets and then arriving at a charge by reference to the hourly rates of the fee earners.  It is agreeing a price for the work at the start, and it involves moving away from arriving at that price principally by reference to the time it is going to take.  Baker is speaking for a day in Melbourne on 5 March 2012 — I’ll be going, briefs permitting — and conducting a half day masterclass at the MCG the following day. (Hobart = 2nd, Brisbane = 12th, Sydney = 15th).  To go, you have to pay $1,628, or $935 for just the talk or $880 for just the masterclass, but if you’re not completely satisfied, you can ask for a refund of the difference between what you paid and what you think it was worth, a version of value pricing I suppose.

 

Shareholder class actions: resources

I wrote a paper on the reception of a causation presumption employed in American securities class actions, the fraud on the market doctrine.  Since no shareholder class action has gone to judgment in Australia, how the difficult issues associated with causation in these kinds of cases will be treated remains to be worked out.  In contrast to the dearth of authority, there is a surfeit of academic speculation.  There are a number of useful resources which are either recent or may not be well known in Australia:

  • A collection of conference papers published as K E Lindgren (ed) Investor Class Actions (2009) see this page;
  • (2009) 32(3) University of New South Wales Law Journal which contains 12 articles on class actions, including several entirely or partly devoted to causation questions;
  • Nera Economic Consulting’s website, with numerous reports on the state of securities class actions in America.
  • Stanford Securities Class Action Clearing House, which aggregates writing on the subject.
  • Professor Morabito’s first two reports on Australian class actions: one, two.
  • The D&O Diary blog.
  • And The 10b-5 Daily blog.

The full bibliography for my paper is reproduced below. Continue reading “Shareholder class actions: resources”

How to prove postage

I had a case not so long ago which might have but did not turn on whether a solicitor’s evidence that he posted a letter was sufficient to prove that.  The same question on much the same evidence arose in Rashed v Perpetual Trustees Victoria Ltd [2010] FCA 1046.  Justice Gray did not need to decide the question, but seemed to have grave doubts about whether the evidence proved postage, saying at [6]ff (despite the numbering below): Continue reading “How to prove postage”

For sale: evidence texts

I want to sell this text, the current edition published in 2009, for $100 including postage within Australia, or $95 picked up from my chambers.  It sells at the Law Institute Library for $130.50.  I bought this one and then they put out a Victorian edition the purchase of which I hope to fund by the sale of this pan-Australian edition.  Nevertheless, this red and black edition contains commentary on Victoria’s Evidence Act, 2008.

Also for sale:

Andrew Palmer, Proof and the Preparation of Trials (a brilliant book).  I plan to put the proceeds of the sale of this first edition, which sells at the Law Institute Library for $78 towards the purchase of the second.  The publisher’s spiel about the second edition, which is much like the first, is here.

and

Jeremy Gans and Andrew Palmer, Australian Principles of Evidence, undoubtedly the best starting point for the study of the law of evidence in Australia, for anyone wanting a broader perspective than only the uniform evidence law.

Whoever offers the most within the next 7 days can have the Palmer books, or either of them, so long as the offer is more than my secret reserve.

‘Aggravated homosexuality’ to be punishable by death

Here is a link to Uganda’s Anti-Homosexuality Bill, 2009. It is proposed that:

  • men who have sex with other men ‘serially’ are to ‘suffer death’;
  • it would be a crime to rent a house to a gay;
  • a woman who touches another woman with a view to seducing her will suffer life imprisonment; and
  • speech in favour of homosexuality will attract a sentence of imprisonment for seven years.

There are obviously some seriously sick puppies at work in the Ugandan government.  Mind you, it seems as though it’s principally the brainchild of a born again Christian MP. It’s a pity, because Uganda was once a pretty cool African nation, before and after Idi Amin.   Now it’s the kind of place where torture is widespread, opposition leaders get arrested, their show trials get stormed by heavily armed government thugs, and 20,000 children have been abducted to work as child soldiers and slaves, forcing many of the rest in the North to leave their villages every evening to sleep in the forest, churches or schools — the ‘night commuters‘ fleeing the Lord’s Resistance Army.  More information  on the bill here.

Twenty-seven year old proceeding dismissed for want of prosecution

Do things move slowly in Western Australia?  I wrote about an estate matter which went on and on and on here.  Now a twenty-seven year old proceeding, which came to have as one of its defendants a famous QC has been dismissed for want of prosecution and the decision confirmed on appeal: Smith v Bank of Western Australia [2010] WASCA 15.  The QC investigated Moira Rayner, and defended the QC disciplined for having taken to the media during the course of the Schapelle Corby saga.  Anyone know of a proceeding which has been on foot for longer?

Is there a principle of construction presuming simple interest in the absence of specification?

Several times I have wondered, in my short career so far, whether a loan or other commercial agreement which provides for interest at a particular rate should be construed as providing for simple or compound interest.  My presumption has been that such a provision would be interpreted to provide for simple interest unless compound interest is specified.  Surprisingly, that is not the law; there is no presumption.  The question is to be resolved by reference to orthodox principles of ascertaining the parties’ intentions without resort to presumptions of law.  In Decorrado v Manoukian [2009] VSC 451, Justice Vickery explained the law, and applied it as follows: Continue reading “Is there a principle of construction presuming simple interest in the absence of specification?”

Richard Ackland’s 2009 wrap-up

Richard Ackland has reminisced about the 2009 indicia of the law’s assiness, and it’s worth a read.  Rich pickings: the artist formerly known as Justice Einfeld, Carmen Randazzo QC2B?, Anal Sheik etc. etc. none of which have been covered on these pages.  It almost tempts me to reintroduce ‘200#; law and war’, last seen in 2007, but don’t hold your breath; I have a date with Vanuatu, a tax haven which, if Kevin 07 does not convince the world to do a real deal in Copenhagen, may give a new meaning to bottom of the harbour.

Why Ethiopia?

(Thanks to A. Davey for the image.) I’m off to Ethiopia on Friday.  I have long wanted to go.  I am hopelessly attracted to the exotic. I arrived in Timbuktoo on a small boat carrying cement up the Niger River and went off into the Sahara with an indigo-robed Tuareg and a camel, I rode a horse with some Peace Corps folk through Dogon country, was pulled out of Lhasa by Médecins sans Frontières, and took the Ougadougou-Bobo Dialasso ‘Express’ in what used to be called Upper Volta.  Addis Ababa, the Danakil Depression, and Mursi country have the right ring to them as travel destinations for me, and it’s more or less as simple as that, so I will explain the more complex question of why not Urumqi, south of Nouakchott, Lo Montang, or 10 islands west of Honiara.  The short answer is: I want to drink homebrew with shepherds, chat with naked scarified kalashnikov wielding nomadic pastoralists, drink $1 Hakim Stouts bottled in the fourth holiest city of Islam, and explore Mediaeval rock-hewn churches from the base of Enrica and Silvio Rizotti’s very civilized looking  Gheralta Lodge. The longer answer follows. Continue reading “Why Ethiopia?”

Interrogatories

Interrogatories are powerful.  They are also out of fashion, partly because no party interrogated ever answers them properly, occasioning a post-discovery hiatus when a trial might otherwise be set down.  In the Supreme Court, you get 42 days to answer. Then compelling proper answers takes weeks more, and suddenly a great deal of time has been taken up.  If you commit to interrogating, you had better commit to an application to compel answers.

It’s important, as Associate Justice Evans and Justice Byrne reminded my client recently, not to ask too many questions.  Unjustifiable prolixity is a form of oppression which grounds proper objection to answering. When preparing for the hearing at which my client was reminded of this important precept, I read too many 19th century cases about interrogatories cited by Williams.  It’s not often you find a recent Court of Appeal decision about interrogatories.  So I thought I would note LS v Rolan Semaarn Salon Pty Ltd [2009] VSCA 201.  The plaintiff sought damages for psychiatric harm she said was the result of the stressful circumstances of her employment.  The employer said drugs consumed at night clubs were the problem.  The employer asked the plaintiff whether she had used marijuana or ice at the relevant time.  Associate Justice Gardiner, Justice Kyrou, and Acting Justice of Appeal Beach with whom Justice of Appeal Mandie agreed all held that the employee had to answer the interrogatories.  Of course they were not saying she had to elect between yes and no.  Taking the privilege against self-incrimination remains an option.

Useful stuff from Dr Manhattan

Melbourne lawyer Dr Manhattan writes Quis Quistodiet Ipsos Custodes.  The Doctor has been generating useful stuff recently.  See ‘English Reports Available Online‘, which tells you how to find the English Reports up until 1873 online, ‘New Evidence Text Released‘, which has links to numerous resources on the uniform evidence legislation set to become law in Victoria soon, ‘UK Supreme Court to Start On Time‘ about the Supreme Court which the Doctor says is going to replace the House of Lords, and ‘Served by Mail‘, about s. 160 of the Evidence Act, 2008.

Legal Aid’s refusal to accept late application for panel quashed

Victoria Legal Aid has a panel of solicitors to whom it refers indictable criminal matters.  A firm of solicitors had been on it for a while, then missed a deadline for applications for renewal. VLA had emailed the firm’s general email address, and the inexperienced receptionist (or former receptionist, for all I know…) had neglected to pass the emails on.  The firm applied to the Supreme Court for judicial review, and won, achieving the quashing of the decision not to reappoint the firm to the panel.  See Lewenberg & Lewenberg v Victoria Legal Aid [2009] VSC 288.

Inferences from non-response to assertions in correspondence received by you

I have never before seen written down any law which explains what use may be made of the fact that you sent a letter to someone containing allegations which are not denied by a letter in response.  It is quite common to see lawyers’ letters which say ‘We note for the record that we do not accept the accuracy of your version of what I said to you in our telephone conversation’, which makes good common sense, and there is in fact some law on the point.  In C B and M Design Solutions Pty Ltd v Pumptech Tasmania Pty Ltd [2007] TASSC 103, Justice Crawford said:

‘[11] Statements made to a party in correspondence may be evidence against that party of the truth of the matters stated, if by that party’s answer or silence it acquiesced in their contents. Whiting v Whiting [1947] SASR 363. A failure to dispute or challenge matters of fact asserted in correspondence received, may amount to an admission of the accuracy of those matters. Whether it does or not will depend on the circumstances, including the conduct of the parties before and after the date of the correspondence in question. Wiedemann v Walpole [1891] 2 QB 534. If a reply could reasonably have been expected if the matters of fact were inaccurate, and no reply was forthcoming, then it may amount to an admission. Young v Tibbits (1912) 14 CLR 114.’

Construction of the arbitration clause

The relatively new Supreme Court judge Justice Davies has provided a useful overview on the law in Victoria on the construction of arbitration clauses in 1144 Nepean Highway Pty Ltd v Leigh Mardon Australasia Pty Ltd [2009] VSC 226.  Her Honour found the clause meant what it said, and stayed the proceeding which had been instituted in contravention of it. Here is her Honour’s summary of the law: Continue reading “Construction of the arbitration clause”