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I posted on this subject earlier here. My friend and former long-time colleague at Middletons, Derek Begg commented, and has referred me to this article on Plymouth & South West Co-Operative Society Ltd v Architecture Structure & Management Ltd [2006] All ER (D) 248 by insurance firm Wotton & Kearney. (Some serious grunt went into their inaugural annual insurance review — which is definitely worth checking out.)

I provided my 25 handy hints on affidavits earlier. Two of them were:

• it is undesirable for one deponent to refer to another’s affidavit and effectively incorporate it by reference; much better to reiterate the whole story in the second witness’s own words;
• a few inconsistencies between affidavits enhance their credibility rather than detract from it — you can get all your ducks in an implausibly neat line, in other words: see Timms v Commonwealth Bank of Australia [2001] NSWSC 560 at [69]ff by way of example;

Now it could probably only happen in NSW where they get very excited about the rules relating to affidavits (I do not say that disparagingly, au contraire), but in Singh v Singh [2007] NSWSC 1357, one Justice Barrett yesterday actually refused to admit into evidence the following statement in affidavits of Mr Singh, Mr Singh, and Mr Singh: “I agree with the contents of his [another Mr Singh’s] affidavit”. (Tragically, his Honour missed the pun about sikhing too enthusiastically to singh from the same songbook.)

Evidence is supposed to be comprised exclusively of facts from the witness’s own knowledge, and opinion which the witness is qualified to give, and it is generally impermissible to give oral evidence about the contents of a document. Since an affidavit stands in substitution for oral evidence at trial, the rule applies equally to affidavits. Either the statement in the affidavits of the three Messrs Singh offended these rules, or they were irrelevant. I will not bother trying to condense the judgment, which is fairly to-the-point. So here it is, word for word: Continue reading “NSW judge refuses to admit affidavit adopting contents of another’s affidavit”

Professor Greg Reinhardt taught me civil procedure in my undergraduate degree. Then he taught me Advanced Litigation, Professional Indemnity Insurance, and Insurance Litigation, in a post-graduate degree I did. In the latter subject, I wrote an essay about, in part, plaintiffs’ attempts to join defendants’ liability insurers to proceedings for declarations that they were bound to indemnify the defendant against the plaintiff’s claim, and published it in two parts at (1998) 9 Insurance Law Journal 208; (1998) 10 Insurance Law Journal 29. Plaintiffs want to know how much insurance defendants have. Little point angling for a $2 million settlement if there’s only $1 million in insurance. Better to characterise the other side’s wrongdoing as negligence rather than deliberate or dishonest conduct if his indemnity insurance doesn’t respond to liability for such wrongdoing. Professor Reinhardt has recently given a paper dealing with the courts’ willingness to take the existence of, responsiveness of, and amount of an insurance policy of one party or another into account, and I report below a full-on development noted in his paper. Continue reading “Court orders defendant to tell plaintiff about its liability insurance”

Update, 4 October 2008: Here’s an excellent article on Bali’s resurgent tourism and the environmental challenges it is posing, by The Age‘s Indonesia correspondent, Mark Forbes.

Original post: This barrister is in Bali. So no new posts until the fury of deadlines which will unleash itself on me again on my return on 19 September 2007 abates sufficiently. Sorry about that. I took this photo in the early morning looking into the Sayan Valley near Ubud, in which is to be found what is considered to be one of the world’s best hotels but which is in fact a dreadful place with a great view, with all the charm of a super-luxury voluntary prison camp.

Choice is over-rated. Sometimes it’s good to be told what to do. Here’s how to have a good time in Bali: Continue reading “In Bali”

The barrister garb costs more than $1,500 to buy if you take up the mega-discount the merchants of these things provide to baby barros. Normally, the wig itself costs $1,350. I shelled out for some at around 4.45 p.m. on 30 June 2007. Now the English have abolished wigs for civil and family trials (some consultant managed to wring a fee of AU$250,000 out of her Majesty’s government for the report recommending same) and the New South Welsh are muttering in the same direction. NSW Supreme Court judges are actually going to vote on the question. What is more, Rob Hulls, Victoria’s Attorney-General, has reportedly said ‘there is plenty of horsehair running around Flemington … and that is where it should stay’. Apparently, it’s already happened in Westralia. Here’s a .pdf version of a whole book on the history of legal wigs from England. And here’s an Australian pamphlet on the subject.

I thought the wig was a bit dear, but now that I know the hair is from Mongolian ponies, I’m much happier. In fact Ludlows say:

‘Our wigs are made from the hair of Mongolian ponies and Australian Brumbies, the finest horsehair available in the world. The hair used for our wigs is taken naturally by cutting, the animals are not harmed. Once sourced, the hair is sterilised and bleached so that it is completely clean and conforms to the strictest standards.

Each wig takes six days to make and is built on a block by one artisan (not on a production line) in the same manner that the finest hats were once made, ensuring the wig keeps its shape for a lifetime.’

I think the barristers’ garb is a bit plain. It needs to be revamped, ramped up, given a bit of bling. I’m thinking gold, lace, medals. Like the Chief Justice of Malaysia: Continue reading “18 days after I buy mine, wigs’ future looking shaky”

Here’s an interesting article on how to do computer forensics in litigation on a small budget.  Sometimes,  it seems to me that litigation is like weddings. Everybody involved knows everyone else is charging through the nose, and everybody wants their snout in the trough.

Richard Bird, a Salt Lake City sole practitioner turned 100 the other day, and still works 9 to 5, Monday to Friday. I’d love to know how many conduct complaints he’s fielded over his 70 year career.

The Age published a Kenneth Nguyen article today out of the blue about the numbers of:

• Australian law schools — 30 years ago there were 12, now there are 30;
• people pursuing law degrees — which the article suggests is the modern day arts degree; and
• people not going on to practice law — 1 in 2 — or even work in law related fields — 1 in 4.

I doubt the social utility of people spending 3 or 4 years in a course as vocational as law without any intention to practise. People study maths and chemistry because the skills are transferrable. So too, apparently, law. No one recognises the enormous social inefficiency of people studying one thing in order to get some spin-off benefit. No one asks why education should not be devised to teach the skills directly. I always marvel that the one thing people who studied maths do not necessarily come away with is a facility in mental arithmetic and the approximation of sums, the two things which might actually be of benefit to them in the real world. And then there are the law students who come away from law school without an ability to write. Don’t get me started.

The Corporations Act contains whistleblowers provisions. Section 9.4AAA which commenced on 1 July 2004 provides extensive protections to officers, employees, and contractors of companies who report to auditors, non-anonymously and in good faith, matters which they reasonably believe suggests that a company or an employee may have breached the Corporations Act or the ASIC Act. Importantly, the only people to whom the whistleblower’s information may be passed  by the auditor without the whistleblower’s consent are ASIC, APRA, or the Australian Federal Police. The company being audited may not be informed without the whistleblower’s consent. This is a kind of Australian version of America’s Sarbanes-Oxley Act which contains similar provisions. ASIC’s information sheet is here.

A Sydney silk took his computer into work at the Department of Public Prosecutions to be fixed. The repairman mentioned the child pornography on the hard disk to his superiors, and the Deputy Senior Crown Prosecutor was suspended on leave with pay and has said he will plead guilty to a charge of possessing child pornography. He may lose his job, his status as a QC, and up to two years of his liberty. With thanks to Freedom to Differ.

Kenneth Nguyen’s analysis in The Age about the importance, from the point of view of the composition of the High Court, of the next election, is worth reading. He says the next federal election is expected some time after September this year, the same month Callinan J must retire by. The Chief Justice must retire by August 2008, and Kirby J by March 2009. Kirby and Gummow JJ are the only two Labor government-appointed judges on the Court at the moment.

Mind you, sometimes these discussions suggest too close a correlation between the likely decision making of appointees and the predilections of the governments appointing them. Deane and Wilson JJ, both champions of indigenous issues, were Fraser Government appointments, for example, and both were powerful voices on social justice during Liberal Governments. Ron Wilson published the stolen generation report “Bringing Them Home” while Howard was prime minister, and William Deane was openly critical of the Howard Government after he was freed of the constraints of the office of Governor General. On the other hand “Liberal government” means something very different today from what it meant in the 1970’s: Malcolm Fraser has been a strident critic of John Howard, as has John Hewson more recently (though he thought Howard’s IR reforms did not go far enough…).

The latest novel written by a judge about the concept of loss of a chance is Halverson v Dobler [2006] NSWSC 1307. I suspect lawyers professional indemnity specialists spend too little time reading the doctors’ negligence cases. Though there seems to be some suggestion that loss of a chance as a concept is on the wane, especially in relation to personal injuries cases, and that loss of a chance should only apply to cases where conventional proof (on the balance of probabilities cannot be made out), that is not quite enough to persuade me to wade through the judgment.