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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.

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.’

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”

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

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”

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”

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.

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”

In Westmelton (Vic) Pty Ltd v Archer & Schulman [1982] VR 305, Starke, Kaye and Fullagar JJ commented on the trial judge’s finding that the evidence of a solicitor Archer should be preferred over that of one of Westmelton (Vic) Pty Ltd’s directors, because the director had avoided service of a subpoena.  His Honour had said:

‘I have also to bear in mind that he … avoided service of a subpoena and came to Court only after I had given leave to effect substituted service on his wife.’

The appeal judges said:

‘Although his Honour saw and heard the witnesses, we were not referred to anything in the circumstances or in the evidence which would justify him drawing an inference adverse to the credit of [the director], or adverse to [Westmelton], merely from the fact that he, being a busy Sydney director for a large Sydney-based corporation, wished to escape if he could from the necessity of giving evidence from some time before the Supreme Court in Melbourne.’

But there are times when a party’s conduct in litigation will be taken into account in assessing their credibility as a witness.  Back to one of my favourite judgments of recent times, Justice Bill Gillard’s Medibonk judgment in Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 (see this earlier post).  His Honour said:

‘300 I am satisfied that Ms Li lied in respect to a number of material issues and she lied because she knew that if she told the truth it would be established, first, that she was conducting an illegal brothel, secondly, that she was providing sexual services for money, thirdly, that she was a prostitute in the sense of charging for sexual services, and fourthly, that she had signed and issued false receipts to enable her patients to make an application for a refund from a private medical insurer. I am satisfied the false denials provide cogent evidence supporting the defence of justification that Ms Li was providing sexual services for clients and issuing them with false receipts to enable them to recover a refund from their private insurers.301 My conclusion is reinforced by Ms Li’s conduct and that of her lawyers in respect to the institution of this proceeding and during the following ten months, which leads to the conclusion that she, and her legal team, had little faith in her own personal claim. Continue reading “Conduct in litigation as an aid to assessing party witnesses’ credibility”

The Law Institute is presenting a seminar on professional misconduct on Thursday evening from 5.30 p.m.  A reserve tickets are selling for the bargain price of just $175.  The blurb says:

‘Kim [Lovegrove, a solicitor] and Sav [Korica, a barrister] will discuss the wider implications of the ways in which professional misconduct is dealt with in many disparate professions, and how many tribunals and disciplinary bodies have come to resemble each other in their methodology.’

CT v Medical Practitioners Board [2008] VSCA 157 is a very important ruling for the world of professional discipline, and its intersection with the world of VCAT. A doctor sought merits review of a disciplinary decision of the Board. The Court of Appeal made clear that the penalty privilege (a close relation of the privilege against self-incrimination), when applied to disciplinary hearings where a penalty such as a fine or a suspension from practice may be imposed (including rehearings such as merits reviews in VCAT), means that VCAT ought not give directions which:

‘require the applicant for review to provide an outline of argument, or any other written material, which contains a positive assertion or denial of facts or requires an election by the applicant as to whether he or she intends to go into evidence or requires any proposed evidence the applicant intends to call to be the subject of a witness statement which must be produced and served on the other side, before the case advanced against the applicant has been completed.’ Continue reading “VCAT reversed for ignoring penalty privilege in merits review of disciplinary proceeding”

The Bell Group litigation was a big one.  Richard Ackland reports on Justice Owen’s attempts to make more enjoyable the process of writing judgment in a matter the trial of which went for 400 days over 3 years.  You will be relieved to know that I have not read The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239.  But I did have a look at it.  The penultimate paragraph (no. 9761) reads:

‘From time to time during the last five years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeast-based substance. It will most certainly involve a complete avoidance of making decisions and writing judgments.’

(I am interested to know what others think “(which may even bear that name)” means.  There is certainly a winery named Nepenthe, but it seemed more likely to me that the drug of forgetting Justice Owen had in mind was in fact Westralian beer — perhaps Little Creatures as an antidote to the behemoth that was this case.)

But blow me down if there isn’t something of interest to this blog: an analysis of the solicitor qua agent of the client, and the imputation of knowledge from the one to the other.  I’m sure the time will come soon enough when I will be glad of Justice Owen’s industry, and pleased with myself for squirrelling this passage away.  Here goes: Continue reading “Solicitors as agents”

(Songs about trials, part 2)  If I told you the precise location within the third great arm of government of the individual who nominated Pink Floyd’s ‘The Trial’, a segment from the filmic rock opera The Wall, you wouldn’t believe me.  More of his rich collection of songs about trials to come.

You wouldn’t know it from the comments but there is quite a flutter as various music buffs email me their lists, and then email me begging to know what others have enumerated.  This is just the beginnings, peoples.  All will be revealed in time.

httpv://au.youtube.com/watch?v=FCMHmDnfD6I

An extract from the lyrics: Continue reading “Anti-establishment propaganda enjoyed within highest office”

Part 1 in a new series: Songs About Trials (leave your favourites in the comments please).  First up, Bob Dylan’s ‘The Lonesome Death of Hattie Carroll‘ from ‘The Times They Are A-Changin’.  Seems Dylan is in fact a rich source of trial songs.

‘William Zanzinger killed poor Hattie Carroll
With a cane that he twirled around his diamond ring finger
At a Baltimore hotel society gath’rin’.
And the cops were called in and his weapon took from him
As they rode him in custody down to the station
And booked William Zanzinger for first-degree murder.
But you who philosophize disgrace and criticize all fears,
Take the rag away from your face.
Now ain’t the time for your tears. Continue reading “Songs about trials: part 1”

It’s all happening down at VCAT.  I reported on Michael Brereton’s disciplinary trial in absentia and the finding that the charges were made out here.  Now, Deputy President Dwyer has handed down his tribunal’s orders with reasons: Legal Services Commissioner v Brereton [2008] VCAT 273. Mr Brereton did not have a practising certificate at the time of the trial, not having applied for the renewal of his old one, so cancelling his practising certificate was not an option.  The only orders the Tribunal made were orders banning Mr Brereton from applying for a practising certificate for 5 years, and telling him not to even think about applying for trust money rights until mid-2018, when he will be 62. After 5 years, he can apply for a practising certificate, but the legal regulator will have to be satisfied that he is a fit and proper person to hold a practising certificate at that time. He was ordered to pay costs of $145,000.  Below, I comment on three aspects of the case: costs, the openness with which the analogy with criminal sentencing is embraced, and defects in the presentation of character evidence. Meanwhile, here’s an article from April on Operation Wickenby, an investigation into Mr Brereton amongst others, which I missed. Continue reading “Michael Brereton banned for 5 years and to pay $145,000 in costs”

Following on from my post about a book by a Melbourne lawyer about a big Melbourne trial, here’s a novel by a Melbourne doctor about a Melbourne GP’s experience of a medical negligence suit.  The Monthly says it’s good, and so it appears does Readings.  It’s published by Scribe.

I have spared you the endless articles on the glacial progress towards national uniformity.  Quite a long time ago now, upon the release of the Sallman Report which gave rise eventually to the Legal Profession Bill, I had lunch with the Legal Ombudsman and she predicted that it would be some time yet before any new law would come into force.  And so it was — years. The Legal Profession Act, 2004‘s commencement was only just achieved in 2005.  But now the buzz about needing to do something about the harmonisation which got derailed has ramped up.  People are talking about rewriting the whole thing and using raw power to make the states pass the same laws.  People like the Attorney-General. Continue reading “That dang national model law on the legal profession”

On 25 July 2008, the Supreme Court’s newish Taxing Master Wood decided a question about the transitional effect of amendments to the provisions about lawyer-client taxations (now called ‘reviews’) under the Legal Profession Act, 2004.  The decision is Law Institute of Victoria v RK.  In relation to such taxations of costs, the Act was amended in important ways on 9 May 2007.  In this particular case, the facts were that the costs agreement predated the amendments, as did the doing of the work, but the giving of the bill and the application for taxation post-dated them.  Master Wood decided that the amended Act would govern all lawyer-client taxations held after the amendments took effect, including this one.  He expressed his distaste for the Law Institute’s opportunistic attempt to wriggle out of a costs agreement it had negotiated with a lawyer, describing its behaviour as ‘unjust’. Continue reading “All taxations after 9 May 2007 are conducted under the amended Legal Profession Act, 2004”

A costs judge of the English High Court handed down a decision about the recoverability in insurance litigation of insurance loss adjusters’ fees.  An interesting article from CMS Cameron McKenna about the case is reproduced below. In an effort to find a link to an online version of the case, I found this webpage of Paramount Costs Consultants, with notes about English cases about costs. Here’s the article in full: Continue reading “Costs of insurance loss adjusters”