Geelong School Supplies Pty Ltd v Dean  FCA 1404Justice Neil Young, who has just resigned after less than a year in the job as a Federal Court judge in order to return to the bar, took the exceptional step of restraining a solictor from continuing to act in order to protect the administration of justice in circumstances where the solicitor had acted for one joint venturer in relation to a meeting of the joint venture company which resolved to commence proceedings against the other joint venturer. That meeting had been controversial because it was held in the absence of the joint venturer the meeting resolved to sue, and the solicitor was likely to have to give evidence about it. There was the added problem that even if the company had properly resolved to commence the proceedings, the running of the proceedings would be frustrated by a deadlocked board. This post summarises the facts in a simplified form, and the outcome. The next post reproduces some of Justice Young’s discussion of the law.
In K v Legal Services Board  VCAT 2303 (see previous post) Bowman J was critical of, and did not follow Law Institute of Victoria Limited v Michel (T0211 of 2004), a decision of the Full Legal Profession Tribunal chaired by Judge Dee to grant a rehearing after having made a final order, on the basis that the solicitor had not received proper notice of the hearing. Judge Bowman suggested that the Full Tribunal was functus officio and in the absence of a statutory power to reopen the hearing, had no power to do so, having done its job and exhausted its jurisdiction in the process.
It is somewhat ironic that he was immediately asked to reopen his decision, decided that in order to do so, he would need to consider whether he was in fact permitted to do so by reference to the principle of functus officio, but then gave his decision in the reopened matter, explaining that it was unnecessary to determine whether he in fact had power to do so, since he was not inclined to change his decision.
This justification for doing so is not particularly attractive. Perhaps another analysis might have been that there is no res judicata in a finding that a tribunal has no jurisdiction, and though it might often be an abuse of process for a second application to be made in the face of such a ruling, the changed circumstance which occasioned him to reopen his decision (the Court of Appeal’s new decision in He v A & Co) was enough not to make what might have been treated as a second application an abuse of process.
South Australia’s Chief Justice gave a talk recently on how the justice system is too expensive. It’s true. What I am very uncertain about is how much more expensive it is than, say, at the time of Bleak House. I mean, I think airfares are expensive, but they’re cheaper, comparatively, than they have ever been.
Update: 26 December 2007 And again, this time on the subject of drink. Peter Faris used to drink a lot of it. Then one day he stopped. Cold turkey.
Original post: You will have noticed that this blog is a blog in part about lawyers, with a bias towards Victorian lawyers. Here is an article about Peter Faris QC, a former chairman of the National Crime Authority, and founder of the Fitzroy Legal Service who “in the 1960s and ’70s added long hair and went to court in brown, elastic-sided boots, North Melbourne footy socks and a pinstriped morning suit, a sartorial snub at the dress code.” Here is his blog.
In Tran v Minister for Immigration Multicultural and Indigenous Affairs (No. 2)  FCA 199, Justice Weinberg ordered a solicitor to pay costs personally. Justice Weinberg said:
“I am in no doubt that the applicant’s solicitor had no idea what he was talking about when he foreshadowed with me, at a directions hearing … that the applicant would be challenging the constitutional validity of certain provisions of the Migration Act.”
His Honour had warned him that if it turned out to be without merit, personal costs liability might follow. When notice of a constitutional issue (“all but incoherent”) was given, the Minister retained the Australian Government Solicitor in place of Clayton Utz, occasioning costs thrown away. The way his Honour described the constitutional argument, which the solicitor struggled to articulate for only a brief moment, suggests that it was reminiscent of Denis Denuto’s “it’s the vibe” speech in The Castle. Continue reading “Federal Court’s scheme for costs against solicitors personally”
As noted by Justice Chernov in Board of Examiners v XY  VSCA 190:
- Frugtniet v Board of Examiners (No 2)  VSC 332 (Gillard J)
- Frugtniet v. Board of Examiners  VSC 140 (Pagone J)
- Fraukes v. Board of Examiners (Unreported, Supreme Court of Victoria, Phillips, J., 8 March 1989)
- In the matter of Lisa Bronwyn Mann (Unreported, Supreme Court of Victoria, Nicholson, J., 9 December 1987)
- Nicholls v. Board of Examiners  V.R. 719 (Ormiston, Fullagar and Vincent, JJ.)
- In the matter of Beverley Honig (Unreported, Supreme Court of Victoria, Nicholson, J. 28 August 1986)
- Board of Examiners v. Whalen  1 V.R. 437
- Re Miller  V.R. 381
- Re Warren  V.R. 406 (Young, C.J. and Gillard and Anderson, JJ.)
- Cash v. Board of Examiners  V.R. 426
Lord Justice Mummery’s judgment referred to in the previous post is admirably short at 34 paragraphs (and the other two judges agreed — very un-Australian) but it it is an exemplar of the worst excesses of EOD, an excrescence on legal writing which achieves precisely the opposite (confusion) of that which it has an air of promoting (clarity). If I were the Lord Chancellor, I would direct that no pleading, affidavit, or judgment contain any TLAs. Or FLAs for that matter. Definitions in legal writing are out of control. I would also direct that any defined term which is not again used in a document render its draftsman liable to a fine payable to charity, and that a lesser fine apply to any definition which the man on the Clapham omnibus would consider reasonably unnecessary. I would task the recipient charities with enforcement and suggest they develop a robotic text crawler which would search the online annals of legal writing for the work of those who feel it necessary to define, say, Ladro Pizza Pty Ltd as “Ladro Pizza” where there is no sense of “Ladro Pizza” which could be confused with the sense of it as the shortening of the name of the company (as would be the case if that company owned the ridiculously popular Fitzroy pizzeria named “Ladro”). Consider this abomination of legal writing from Lord Justice Mummery’s judgment: Continue reading “Excess of definacronymisation (”EOD”)”
Here it is: APF Properties Pty Ltd v Kestrel Holdings Pty Ltd  FCA 1080, a decision of Heerey J.
Justices Chernov, Nettle and Ahley JJA handed down the Victorian Court of Appeal’s judgment in The Herald & Weekly Times Pty Ltd v Victoria  VSCA 146 on 7 July 2006, one of the 1 in 1000 decisions of VCAT which are appealed (according to a speech made by its President). They found that VCAT’s power to override by direction the basic principle that VCAT files are able to be inspected by the public meant that VCAT had an implied power to reinstate proceedings for the purpose of exercising that power in proceedings which were otherwise long disposed of. Continue reading “Court of Appeal rules on VCAT’s implied jurisdiction to reinstate struck-out proceedings”
It took New Zealand’s new ultimate appellate court a long time to hear Chamberlains v Lai  NZSC 70 and make a decision, but after a long think, its judges have decided to give advocates’ immunity the boot. Advocates’ immunity, otherwise sometimes known as “barristers’ immunity” or “forensic immunity”, applies equally to solicitors involved in litigation as to barristers involved in litigation. It is an immunity from being sued for negligence or anything else for work in court or work intimately connected with such work in court, and is based on the public policy that the umpire’s decision is final.
Many will be the analyses of how Australia is alone in the civilised world in retaining the immunity (though they will be wrong, because Scotland recently followed Australia’s lead and thumbed their noses at the House of Lords: see below). But what needs to be analysed is whether as a practical matter, clients can successfully sue barristers in any particular place, whatever the name of the impediment to doing so is. A right to sue which gives rise to an unsuccessful suit is a right to make a very poor investment of a lot of legal fees. The law in places which profess not to recognise the immunity is less different than we might imagine from the law in places which do profess to do so. The more I know about the law, the more interested I am in analyses of facts against results, ignoring the legal language interposed between them.
Meanwhile, the Inner House of Scotland’s Court of Session declined an invitation to abolish the immunity in criminal cases in Wright v Paton Farrell  SLT 269, showing uncharacteristic restraint in this curious corner of jurisprudence by not commenting on civil cases.
According to VCAT’s website, 60% of cases which were finalised in 2004/2005 took 9 weeks or fewer, and 80% took 12 weeks or fewer. That is an astonishing statistic, and a good one.
The retainer referred to in this earler post on Equuscorp Pty Ltd v Wilmoth Field Warne [No. 3], which contained a whole agreement clause, was found to contain an implied term that the solicitors “will follow the instructions given by [the client] in relation to the files. Continue reading “Duty to follow client’s instructions implied into solicitor’s retainer”
Legal Practitioners Conduct Board v Ardalich  SASC 278
The solicitor referred to in the next post could not escape a finding of unprofessional conduct because of his mental state, even though the species of unprofessional conduct alleged against him was the commission of serious criminal offences to which insanity was a defence. The South Australian Court of Appeal explained: Continue reading “Insanity not a defence to professional discipline proceedings”
Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria  VSCA 301.
Kabourakis v Medical Practitioners Board of Victoria  VSC 493 (Gillard J)
Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”
SPB v Law Institute of Victoria  VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c)
Solicitors who read the back pages of the RPA News (dubbed the “sports pages”) well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public excoriation of a regulator as in this decision, however. His Honour railed especially about the adverse finding made on the papers without interviewing the former client or having her confirm her allegations by statutory declaration.
Said Georges’ Case  VCAT 414
Upon bankruptcy certain causes of action vest in the trustee in bankruptcy, and others do not: see ss. 58(1) and 116(2) Bankruptcy Act, 1966. This dispute vested in the trustee upon the client’s bankruptcy, but the trustee wrote the client a letter consenting to “the bankrupt’s pursuit of the dispute with [the solicitor] by lodging the appropriate applications to the Legal Profession Tribunal”. Mr Butcher found that though the trustee probably had the power to engage the bankrupt client to pursue the claim for the benefit of the estate, but “the letter does not indicate to me that such was the intention of the trustee”, and dismissed the dispute.
Evidently, this was a matter overlooked by the Law Institute which blithely exercised jurisdiction it did not have, to the detriment not only of the taxpayer’s pocket but of the solicitor’s.
A’s Case  VCAT 111
It is a well established but frequently unknown proposition that by virtue of the inconsistency of the federal scheme for the disputation of the costs of family law litigation proceedings provided for by the Family Law Rules 2004 and the costs disputes procedure under the Legal Practice Act, 1996, the latter yields to the former, with the result that the Legal Practice Act, 1996 does not apply, and neither Professional Standards nor the Tribunal has any jurisdiction.
This decision establishes only that it makes no difference if the Magistrates’ Court hears a family law matter exercising federal jurisdiction, since rule 19.40 establishes that the Family Law Rules extend to the costs of a lawyer conducting a case in a court of summary jurisdiction. The Magistrates’ Court hears matters under Part 7 of the Family Law Act, 1975, which deals with matters concerning children.
(So the applicant lost her claim for $172. One has to wonder whether a filing fee refundable on success might not sharpen the minds of applicants.)
Alan Hebb appeared for the Tribunal; there were no appearances for or by the parties.
Buttigieg’s Case  VCAT 2916
The costs agreement in a Workcover matter said “we will only charge you if you are successful” and that was defined to mean “lump sum compensation, … weekly payments of compensation including an increase in the rate, …, payment of medical and like expenses”. But it said “We shall send you a bill for our professional fees when we have completed the work on your behalf.” Buttigieg said since she had not yet received lump sum compensation and her case had not yet been completed, she should not have to pay a bill of $1,100 rendered upon receipt of $7,800 in arrears of weekly payments (i.e. not lump sum compensation). Mr Howell concluded:
“These provisions [of the costs agreement] do not sit easily together, as being successful and completing a matter are different concepts. [“the terms … are equivocal and to a limited extent quite confusing. For example, the costs agreement is a standard form designed to deal with both workplace injuries and motor vehicle injuries, which means that many of its provisions had no relevance whatsoever in Ms Buttigieg’s case. It is possilbe that this dispute might not have arisen if the costs agreement had been tailored to deal with her case.] Doing the best I can to make sense of the costs agreement, I am satisfied that the thrust of the agreement was that no fees would be charged unless compensation of some kind was received by Ms Buttigieg. [She] received about $7,800 in back payments when weekly payments were restored, and [the solicitors] did not render an account to Ms Buttigieg until that had happened. I do not see liability for payment of costs as dependent upon completion of the claim, partly because there are periodic variations or adjustments in many workcover claims and the work in those claims tends never to be completed.”
Mr Howell decided that because of the poorly drafted costs agreement, the solicitors were not entitled to costs “even if the dispute … was frivolous, vexatious, misconceived or lacking in substance” (the touchstone for his discretion).