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.


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 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”

Reverse garage sale

I want to buy the following books, regardless of condition:

[1932] AC

Legal Profession Practice Act, 1958, all reprints

Legal Practice Act, 1996 (Vic.): the original Act, all reprints, and any amending Acts

R.J. Desiatnik, Legal Professional Privilege in Australia, 2nd ed.

Gino Dal Pont Law of Agency, penultimate (2001) edition

Dr John Glover, Equity, Restitution and Fraud

Dr John Glover, Commercial Equity: Fiduciary Relationships

A.K. Handley Res Judicata, latest edition

Foskett, The Law and Practice of Compromise, any recent edition (the latest is, I think, 2005)

Brian Watson, Litigation Liabilities, either edition

Burmingham almost Stergious megafirm

The Supreme Court is pumping out notable decisions about lawyers at such a rate that I will have difficulty keeping up.  So I will start with the most titillating bit of the most interesting and most recent, Justice Byrne’s decision in Maurice B Pty Ltd v Burmingham [2009] VSC 20.

Mr Burmingham is not Mr Stergiou.  He described his background as:

‘a qualified chartered accountant with a wide array of outside interests including studying, working as a freelance cartoonist and illustrator, a  professional model, an actor and speechwriter, [who] excelled in singing and voice production … [and who]  previously enjoyed sports such as football, cricket, soccer, basketball, golf, baseball, tennis, swimming and athletics’.

But he was self-represented, he was dogged, and there was one absolute pearl amongst what Justice Byrne otherwise considered to be dross. Four and a half years into the proceeding, after the close of evidence in a trial which ended more than a year after it began, he pointed out that Continue reading “Burmingham almost Stergious megafirm”

Latest on whether solicitors engage in trade or commerce: Part II

Part I is here. This part II is about a unanimous decision of the NSW Court of Appeal, Kowalczuk v Accom Finance [2008] NSWCA 343. Their honours followed a decision of the Full Court of the Federal Court in Shahid v Australian College of Dermatologists [2008] FCAFC 72; (2008) 168 FCR 46 at [181] which was on this point unanimous. In Shahid, Justice Jessup was the judge with whom the others agreed. His Honour declined to follow an earlier decision of the Supreme Court of NSW, Prestia v Aknar (1996) 40 NSWLR 165 insofar as it suggested that when certain professionals, including solicitors, engaged in their core professional work (in the case of solicitors, advising, drafting legal documents, and representing people, especially in litigation), they do not engage in trade or commerce, though there are aspects of what professionals do in their capacity as professionals which may be said to be in trade or commerce. Justice Jessup said to work out whether conduct of a professional was in trade or commerce, you simply ask whether the conduct was conduct ‘in professional practice’.

The tide is ebbing steadily away from this craziest immunity of the legal profession (probably shared, probably unbeknownst to them, by those engaged in divinity, the military, and medicine), and it looks like many professional negligence cases (especially of the wrong advice, rather than failure to advise species) may now increasingly confidently be pleaded in contract, tort, and misleading or deceptive conduct. Unless, of course, one of the parties takes the super-tasty appeal bait in para [350] of the judgment and the High Court says Justice Santow was dead right in Prestia v Aknar all along.

Here’s what Justice of Appeal Campbell, with whom Justices of Appeal Hodgson and McColl  agreed, said: Continue reading “Latest on whether solicitors engage in trade or commerce: Part II”

A genuine case of good corporate citizenship? From a drug company??

Since I enjoyed the hospitality of an Australian doctor doing malaria research in The Gambia on my way to Timbuktoo, I have watched the pace of malaria research with a slightly above average level of interest. There are several diseases caused by different mosquitoes. Acute and severe malarias can lead to comas and deaths within hours or days. Then there is chronic malaria. Incubation periods can be up to 30 years, and recurrence is common. It saps the energy of the young people and weakens economies by draining the workforce and requiring expenditure on health care. Most of the deaths occur in children in sub-Saharan Africa (that is to say, all of the countries except the ones at the top of the continent). The childhood survivors may suffer cognitive impairment.

According to Wikipedia, symptoms short of coma and death include light-headedness, shortness of breath, tachycardia, as well as other general symptoms such as fever, chills, nausea, flu-like illness.

I was unhappy to learn that a major cause of preventable malaria deaths in south-east Asia is counterfeit anti-malarials which are difficult to detect except by laboratory analysis. But accelerated change for the better seems to be afoot. US$3 billion has been pledged towards eradication by the international community, and the Bill and Melinda Gates Foundation has given US$168 million for research on a vaccine, and Bill Gates successfully attracted a lot of attention by letting loose a swarm of mosquitoes in a packed auditorium to which he was speaking. But what prompted this post is some excellent news hiding away amongst tales of tragedy from a very Australian scourge. Glaxo Smith Kline, the world’s second biggest drug company, has decided to donate patents in technologies which are needed for malaria to a pool which may be accessed by scientists working on a cure. And they are cutting the prices of drugs in 50 of the worst off nations, mainly in Africa, to no more than a quarter of the prices in the West. Mind you, given that the cost of a couple of dollars for an insecticide treated mosquito net is too great for many rural African potential sufferers, I am not sure how much of a difference that is going to make.


It is very frustrating when you receive a judgment which skates over the points you think were good ones without grappling with them.  Turns out it is an appellable error of law.  The guy who won half a million dollars for assault by Connex officers after he spat in their face and broke his wrist as he fled got rolled on appeal, though he lives to fight another day in a retrial: ACN 087 528 774 P/L v Chetcuti [2008] VSCA 274.  The trial judge’s reasons were inadequate, according to Acting Justice of Appeal Hargrave, with whom Justices of Appeal Ashley and Dodds-Streeton agreed.  His Honour said: Continue reading “Reasons”

Special responsibilities of lawyers as litigants

Lawyers are the only litigants who are entitled to recover from the counterparty in litigation costs for representing themselves: Guss v Veenhuizen (No 2) (1976) 136 CLR 47.  Suing the client for fees can therefore be a nice little earner for lawyers.  There is a species of lawyer whose suits for fees are conducted in an ugly fashion, particularly where the former client is unrepresented. I do not like it when I see cases where solicitors have issued chambers summonses without notice to strike out incompetently prepared handwritten defences, obtained costs of their own appearance, and then issued a summons for oral examination when the costs go unpaid. No doubt this kind of abuse explains why there are limits on the entitlement to sue for fees, such as the obligation to wait 65 days after giving the bill: s. 3.4.33(1), Legal Profession Act, 2004.

If ever you need authority to throw at a lawyer who seems to be using the processes of the Court in an over-enthusiastic manner, check out Circuit Finance v Gardner [2006] VSC 70 (which was not a case about a suit for fees). Continue reading “Special responsibilities of lawyers as litigants”