Shortest Supreme Court proceeding in history?

Yesterday, ‘after 5 p.m.’ as he put it in his letter of capitulation, a solicitor was served with originating process out of the Supreme Court of Victoria.  At 5.18 p.m., a letter agreeing to give the relief sought, without condition (including in relation to costs) was received. Tomorrow, the proceeding will be disposed of by consent, with costs. Anyone got a better story about swift justice?

Hope springs eternal in the debtor’s breast

Professor Reinhardt educated me about litigation, twice, once at law school and then in my Masters.  He had a fondness for the ingenuity of debtors and used to say ‘Hope springs eternal in the debtor’s breast’, a corruption of an Alexander Pope poem, very often. (His second most favourite phrase was ‘sticks out like a dog’s proverbials’.) Anyway, this post, the subject matter of which is a debtor’s exquisitely technical argument about that most arcane of orders, order 63 of the Supreme Court Rules, is dedicated to Professor Reinhardt.  But for those who like to know the take-home message without savouring the nice arguments which produced it, it is this: however you got before the Taxing Master, his orders operate as a final judgment which may themselves be enforced, but before you go out executing on them, you have to get them authenticated: Scott v Evia Pty Ltd [2008] VSC 324, a decision of Justice Hansen. Continue reading “Hope springs eternal in the debtor’s breast”

Magnetic Island

I spent a week on Magnetic Island just now. It is a good place: a big island with four little suburbs but mostly national park, where people live, go to school, the bakery, the chemist, and the doctor. It has good supermarkets. It has wonderfully hokey restaurants like Man Friday’s, a Mexican restaurant which has been there for 25 years, with light shades made from large tins, painted, and patterns banged out with hammer and nails. It has a fine fish and chips shop cum equally hokey seafood restaurant, and it has an honest Italian restaurant with a location on the beachfront to die for but without the prices which generally go with such places. It has blue winged kookaburras and pheasant coucals, red-tailed black cockatoos and koalas, real beach houses (consider this one, and this one), a Friday nightmarket put on by the RSL with a food stall put up by an Indonesian woman, and a dessert stall put up by a local lady who will sell you a one person pavlova and a one person trifle for a total of $6. It has old tractors and dilapidated buildings, everything that a seaside holiday should have.

It is, in other words, the antithesis of Noosa and Cairns, more like the Inverloch of the tropics, and is therefore something to rejoice in. It is just off the coast of Townsville, you see, a working man’s town with few tourists. Continue reading “Magnetic Island”

Limits on the Commissioner’s power to demand information and documents

Update: 26 February 2009 For an interesting review of the authorities relating to similar statutory investigators’ powers and the implied limitations to be found in the relevant statutes, see A. B. Pty Limited v Australian Crime Commission [2009] FCA 119, a decision of the Federal Court’s Justice Flick.

Original post: Once a complaint form has been lodged by a complainant with the Legal Services Commissioner, she has decided that it constitutes a ‘complaint’ as defined, has heard the respondent lawyer on whether it should be summarily dismissed, and has decided against that course, the Commissioner may exercise any or all of her draconian powers under s. 4.4.11 of the Legal Profession Act, 2004. That provision is reproduced in full at the end of the post, but it says that by a written notice, the Commissioner may require a lawyer under investigation to provide a ‘full written explanation’ of his or her conduct, and ‘any other information or documents’, regardless of whether they are privileged or not. The privilege against self-incrimination is no answer to such a demand. The equivalent section under the Legal Practice Act, 1996 was s. 149, and the equivalent inquisitor the Legal Ombudsman, whose last incarnation was Kate Hamond [sic., despite the spelling of the case name].

In Power v Hammond [2006] VSCA 25, Justice of Appeal Chernov said:

Continue reading “Limits on the Commissioner’s power to demand information and documents”

Memories of law school

When I started law school, I could not have told you the difference between a barrister and solicitor, and I was perplexed why all the judges’ initials were ‘J’. For some reason, I thought it was absurd that there was an Act called the Acts Interpretation Act. I was contemptuous but nonetheless attracted to the English nonsense of Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Morris of Borth-y-Gest, and Lord Brandon of Oakbrook (I was ignorant of the existence of Lord Salmon of Sandwich). But until I read this very English article in that very English paper, The Times, I thought that it had been thus since time immemorial. In fact, these geographical curlicues are a modern affectation. There was no Lord Denning of Dover, Lord Diplock of Wigan, Lord Reid of the Rock of Gibraltar, or Lord Wilberforce of Land’s End. Even today, not all law lords use a place in their title. More strength to them.

The fidelity fund

Update, 26 August 2009: Justices of Appeal Buchanan and Neave agreed with Acting Justice of Appeal Kyrou in dismissing the punters’ appeal from Justice Pagone’s decision. See Vaughan v Legal Services Board [2009] VSCA 187.

Original post: The fidelity fund is one of the areas of the legislation about lawyers I have never had much to do with. The basic principle is that when lawyers steal clients’ money, or deal with it in breach of trust, a fund contributed to by all the lawyers in the state pays out the victims. We have professional indemnity insurance for negligence and other forms of civil liability, but it is not available where there is a ‘defalcation or default as defined by’ the Legal Profession Act, 2004 (or, before that, the Legal Practice Act, 1996), regardless of whether there is a claim on the Fidelity Fund (cl. 20.6(b) of the 2008/2009 policy). And we have the fund for fraud by solicitors involving trust money.

Justice Pagone’s latest decision in Vaughan v Legal Services Board [2008] VSC 200, is a case about the washup of the crimes of former Kew solicitor Julie-Ann Laird who stole millions from her clients, telling them that everything she did was protected by the fidelity fund (a detail she denied in her police interview). It is a nice, spare, judgment. She lost her practising certificate for 20 years in the Legal Profession Tribunal, and subsequently, on 1 June 2005, Justice Kellam jailed her for 7 years with a minimum of 3 and a bit (see R v Laird [2005] VSC 185). This particular case, under the Legal Practice Act, 1996, turned on whether the monies received by Ms Laird were received by her in the course of legal practice. Justice Pagone was obviously comfortably satisfied that the wrongdoing did occur in the course of or in connection with legal practice, but held against the plaintiff claimants on the fund on the basis that an exception to the availability of the fund applied. The exception was s. 208(3)(b) and excluded claims in respect of defalcations arising out of the investment of money by a solicitor that is not merely incidental to the legal practice engaged. The whole of his Honour’s analysis of whether what Ms Laird did was in the course of, or in connection with, legal practice is as follows:

Continue reading “The fidelity fund”

It’s summer in England

and this is what The Times thinks lawyers should be reading on their summer holidays:

  • The Art of the Advocate, by Richard Du Cann, QC, Penguin;
  • Famous Trials, selected by John Mortimer, QC, Penguin;
  • The Tyrannicide Brief, by Geoffrey Robertson, QC, Vintage;
  • To Kill a Mockingbird, by Harper Lee, Pan Books;
  • The Firm, by John Grisham, Arrow.

An absurd proposition certainly, for all but the most tragic (and there are many law tragics who are yet to come out of the cupboard), but for some reason I like the article. So here it is.

What is it about ex-telecommunications regulators?

The Times has a feature on David Edmonds, the new non-lawyer Chairman of England’s new Legal Services Board.  He used to be the Director General of Oftel, old Blighty’s telecommunications regulator.  Victoria’s equivalent, Victoria Marles, our Legal Services Commissioner and Chairwoman of the Legal Services Board, was formerly the Deputy Telecommunications Ombudsman.  Weird, huh? England’s new Office of Legal Complaints has a £4 million budget, and Edmonds has a very sensible determination to staff it with top people.  The guy has got it so right:

‘He is determined that his own outfit will be a match for the lawyers it deals with: “top people involved from the start.” His first task is selecting up to ten board members: 300 applications have been whittled to 50 names. The board, with a majority of non-lawyers, will be in place by September. A chief executive is also needed. “My goal is to recruit people who have the skill sets and intellectual abilities to be able to deal on an equal footing with the legal profession. You can’t have a board that doesn’t have the same quality of intellect.”

As to how he will proceed, the clue is with his work at Ofcom, where they did not “go down the Civil Service route” for staff but recruited from outside. A textbook he helped to write about setting up the regulator will serve as a guide.’

A good legal regulator needs top lawyers.  And there is no way of getting them without paying top dollar. But you pay good money for good lawyers in house, and presumably you reduce your reliance on external counsel which must be a good thing for a legal regulator.

Oscar

Oscar Warne, born on May Day, is distracting me from blogging for the moment.

On Tibet

Sometimes, the slight elevation of my e-soap box causes me to give in to the urge to go off message. My apologies in advance. But the Prime Minister is embroiled in a so-called diplomatic row for having said ‘there are significant human rights problems in Tibet’. The Chinese response was ‘people in Tibet are now enjoying democracy and wonderful human rights protection’. What drugs are their speech writers on? Or have they been talking with Tariq Aziz (remember him from the beginning of the Iraq War?). Why, as a PR exercise, would you denigrate a smiley monk with a Nobel Peace Prize, whom everyone believes to be the Gandhi of our age in so preposterously old fashionedly Newspeak-like a manner as this Xinhua wonder with its claims which leap off the page as preposterous lies, absurd propaganda? Actually, I’d prefer it this way; it’s better than a world run entirely by spin doctors, which must not be that far off given that Hamas spent £100,000 on a public relations job not so long ago. I like my propaganda to sound reassuringly like propaganda. Continue reading “On Tibet”

A case about contested quantum in crash and bash litigation

Stocovaz v Fung [2007] NSWCA 199 is a rare thing: a superior court decision about motor vehicle property damage litigation, more commonly known as ‘crash ‘n’ bash’. The New South Wales Court of Appeal said that the plaintiff is entitled to the amount actually paid for repairs unless the defendant can establish that it was ‘extravagant’ in the sense of being outside the range of amounts which a reasonable person would pay for the repairs. There seems to be a policy to avoid clogging up the courts with cases which take a comparatively long time to hear, but amount to squabbles between insurers over differences of a few thousand dollars. Carter Newell’s case note is here.

Black and white

On Australia Day, I watched the 2002 film ‘Black and White’, about the Max Stuart case. I had picked up historian Ken Inglis’s book on the case at a church fete the other month, thinking it was the kind of thing a young barrister should have in his chambers, and flicked through it at the time before putting it in the waiting room for unread books. It was an excellent film, and I’ve reshuffled the book towards the front of the waiting room. Max Stuart is an aborigine who worked at a travelling fun fair. He was convicted of murder in 1959 on the flimsiest circumstantial evidence and a confession. He had previously been convicted of indecently assaulting a girl, had been a bare knuckle boxer, and was a heavy drinker. Continue reading “Black and white”

Hercules and the Magistrates’ Court rule requiring reasons for denials in defences

I had a little debate with the Supreme Court not so long ago about whether my client’s bare denial defence was appropriate. A bank had pleaded that my client had mortgaged his house to it. My client simply denied the allegation. I said by way of a place to start the discussion that it was indubitably a proper pleading if my client’s case was that he had never had anything to do with the Bank. It is not necessary to plead, I said, “The defendant denies paragraph 4, and says further that he had never had any dealings with the Bank, and they must have sued the wrong person”, nor “… that it was not him but his cousin with the same name who mortgaged his house to the Bank”. I thought that was uncontroversial, but it proved not so.

In Keith Hercules v Magistrates’ Court of Victoria [2008] VSCA 1, Mr Hercules, a Melbourne sole practitioner, applied to strike out the defence of a personnel agency he sued. He pointed out that the Magistrates’ Court Rules are peculiar in requiring reasons to be given for denials. He failed, and was ordered to pay costs. Instead, the Magistrate ordered the provision of further particulars. It seems that Mr Hercules had acted peremptorily, without first raising his complaints with his opponent, as is the custom. As the Court of Appeal said: Continue reading “Hercules and the Magistrates’ Court rule requiring reasons for denials in defences”

So long as you don’t intentionally fail to turn up when briefed, no problem

Senior Member Howell’s decision in Crawford v Kennedy [2008] VCAT 5 begins:

‘Mr. Gilbert Crawford was a defendant in proceedings to be heard in the Magistrates’ Court on 29 March 2006. He was impressed by [the late] Mr. Peter [H] QC when he saw Mr. [H] on a television programme. Mr. Crawford went to see Mr. [H] and engaged him to appear on his behalf at the hearing in the Magistrates’ Court.’

A Melbourne solicitor, presumably giving evidence on oath, was described as ‘not an impressive witness’ who was ‘determined not to give an answer unfavourable to Mr. H,’ which she presumably won’t be too happy about. Interestingly, she is quoted in this article in The Australian as saying that her one-time boss, tax lawyer Michael Brereton was using Mr H almost full-time before Mr H died. Mr Brereton was being irritated by a dispute with the tax man in the Supreme Court, and retained Mr H to ameliorate the irritation, but was also briefing Mr H on behalf of his own clients, according to the article. It was Mr Brereton’s case which Mr H attended to on 29 March 2006, instructed by the female solicitor, who had by then gone out on her own, and was acting for Mr Brereton. Continue reading “So long as you don’t intentionally fail to turn up when briefed, no problem”

Webcasts of court proceedings

‘Your Honours, counsel, my name is Gerry Hall and I am the attorney representing Lyndell Howard, the defendant in this case.  You know, I got up early this morning and I reviewed the trial court pleadings, and the motions we had filed there in the trial court, the transcripts of some of the testimony.  I looked at the trial court briefs, and then the Supreme Court briefs, trying to better develop my argument and then it kind of dawned on me — this is all stoopid. You’ve all read  everything we’ve put before you, and I don’t need to bore you with recitations of what Greever or Felinar or all those other cases say, or the significance of s. 5-3-1 of the Criminal Code, and how that applies here.  They may have helped to get us here, and I think they certainly are supportive, but I think the real problem, and the reason we have cases interpeting this official misconduct statute, is that it’s just not entirely clear.  If it were, we wouldn’t be here. Because it would be, you know, black and white.’

So began the case of Williams v Manchester in the Supreme Court of Illinois.  They upload video of the submissions to the internet.  It’s an appeal court, so many of the objections to televising court proceedings do not apply with the same force. Watch the case here, if only for an insight of how differently they do things over there (see above: ‘You know, I got up early this morning and…’).  Or you can look at a case summary, read the written arguments as .pdf files, watch the oral arguments, and read the judgments in certain cases of the Florida Supreme Court here. More options at the bottom of this page.  All this I learnt from this blog.

Two Age articles about the Supreme Court

Tucked away in the business section of Saturday’s Age are two articles about the Supreme Court, and its funding difficulties. They don’t seem to be online, but here’s another article with much the same flavour: the Court needs more resources and new ideas to deal with civil trials. What follows is a stream of consciousness rant based only on anecdotal evidence, against the whole profession of litigators and reformers too timid to contemplate anything other than tinkering at the edges, rather than criticism of the Court. I am happy to acknowledge that some of the suggestions might turn out to be misconceived, but I wish I heard more discussion of this kind at the moment when there is a civil justice review on foot. Continue reading “Two Age articles about the Supreme Court”

Mediators’ immunity questioned

Freehills’ Ken Adams taught me a lot in my first years as a solicitor. He used to delete the immunity clauses in mediation agreements before having his clients sign them. I have occasionally done likewise. Mary-Anne Noone wrote an article in the October Law Institute Journal riffing off Tapoohi v Lewenberg (No 2) (2003) VSC 410. It is titled ‘Liability Matters for Lawyer Mediators’, and its citation is (2007) 81(10) LIJ 52. Unless you are an LIV member, you won’t be able to access it, but its point is simple: that all those clauses which mediators pop into mediation agreements immunising themselves are void, if the mediator holds an Australian practising certificate and the mediation occurs in Victoria. They are void for infracting s. 7.2.11(2) of the Legal Profession Act, 2004, which says: Continue reading “Mediators’ immunity questioned”