Costs recovery in pro bono cases in Victorian state courts: Part 3

I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by victorious litigants who engage their lawyers on the basis of a greater variety of pro bono arrangements. That is as a result of both recent developments in the judge-made law and changes to the Supreme and County Courts’ rules. Over the last few days, I published parts one and two of the paper I distributed. What follows is the third and final part, which considers different kinds of client-favourable costs agreements (some quite esoteric) and analyses their indemnity principle implications.  It also provides some thoughts on how to draft costs agreements for work done otherwise than on a purely commercial basis, and how to ensure counsel get paid. Part one is here and part two here

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Species of client-favourable costs agreements

Options available to lawyers who wish to do work at less than their usual rates for non-commercial reasons include:

(a) not making any arrangements as to fees at all;

(b) charging your usual rates and leaving it to your discretion whether you send out a bill, or whether you forgive some or all bills given in the event that certain outcomes obtain;promising to do the work for free;

(c) agreeing to do the work at a reduced rate;

(d) doing the work on a no win = reduced fee basis;

(e) doing the work no win = no fee;

(f) doing the work no costs order = no fee;

(g) doing the work on no actual recovery of costs / compensation / costs or compensation = no fee basis. Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 3”

Holy moly! VCAT finds costs agreement void for ambiguous disclosure then orders solicitors to content themselves with original estimate

VCAT has published reasons, the first I’ve come across, dealing with the allowance of costs under a costs agreement void for disclosure defaults: Sleath v RGL [2017] VCAT 1998.  Though they do not say so, it seems that the principal logic of the determination, under the same principles as the Costs Court is required to have regard to in taxations, was to keep the practitioners to their original written estimate notwithstanding subsequent oral updates. Scary stuff for lawyers if other decision makers reason similarly.  Whether the Costs Court will reason similarly is an interesting question.  It may be more likely that the Legal Services Commissioner will feel compelled to adopt similar reasoning in those costs disputes which it determines itself rather than referring off to VCAT.  Good news for clients and third party payers if so. Continue reading “Holy moly! VCAT finds costs agreement void for ambiguous disclosure then orders solicitors to content themselves with original estimate”

Tribunals not bound by the laws of evidence

Update, 10 August 2017:  It once seemed to me having read Pizer’s Annotated VCAT Act (2015) at [8.60] that there was an argument to be made that the Evidence Act 2008 might have some operation to the extent that it is not over-ridden by s. 98 of the VCAT Act 1998, in that the Evidence Act 2008 empowers courts to do certain things which might not be described as part of the ‘rules of evidence’ referred to in s. 98. The Evidence Act 2008’s definition of ‘Victorian court’ (in whose proceedings the Act is said to apply) is inclusive of tribunals bound by the law of evidence, rather than excluding all tribunals which are not bound by the law of evidence, and VCAT has been regarded as a ‘court’ for various purposes. But the Court of Appeal has effectively decided (albeit without considering my thought) that the Evidence Act 2008 simply does not apply in VCAT: Karakatsanis v Racing Victoria Limited [2013] VSCA 305 at [32] – [34].

Update, 9 August 2017:  To gather the law together in one place:

(a) Pizer & Nekvapil, Pizer’s Annotated VCAT Act treats this question at [VCAT.98.160] citing Curcio v. Business Licensing Authority (2001) 18 VAR 155 at [26]; Pearce v. Button (1986) 8 FCR 408 at 422; Golem v TAC (2002) VAR 265 at [9(iv)]; Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd [2011] VSC 191 at [59]; and Medical Practitioners Board of Victoria v Saddik [2010] VCAT 366 at [44].

(b) A reader commended Justice Giles’s article ‘Dispensing with the Rules of Evidence’ at Vol 7 No 3 Australian Bar Review.

(c) Consider also Danne v The Coroner, [2012] VSC 454, noted here.

Original post: Here is a useful collection of interstate and federal law about what statutes are actually to be taken to mean when they say that a tribunal is not bound by the laws of evidence (like VCAT), from Justice Refshauge’s reasons in Pires v DibbsBarker Canberra Pty Limited [2014] ACTSC 283: Continue reading “Tribunals not bound by the laws of evidence”

Appeals from VCAT on the basis of inadequate reasons

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw. Continue reading “Appeals from VCAT on the basis of inadequate reasons”

$5,000 fines in lawyers’ disciplinary prosecutions

In this post, I noted the New South Wales Court of Appeal’s review of fines in solicitors’ disciplinary proceedings. I did my own little survey of Victorian cases recently in order to justify to the VCAT a joint submission as to penalty following a plea.

How naughty does a lawyer have to be to cop a fine of $5,000 in a disciplinary prosecution where that is the principal penalty (often paired with a reprimand, and costs of about $5,000)?  This naughty:

Continue reading “$5,000 fines in lawyers’ disciplinary prosecutions”

The Bureau de Spank’s obligation not to publish about disciplinary orders until lawyers’ appeal rights are spent

Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.).  Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary orders made by the VCAT’s Legal Practice List while appeals or appeal rights are live.  The prohibition extends beyond publication on the proposed disciplinary register to disclosure of information to the public more generally.

There is a problem with the Bill though: it focuses its protection of the profession on prohibitions of publications by the Legal Services Board about final orders.  The Board shares a website and premises with the office of the Legal Services Commissioner.  The CEO of the Board is in fact the Legal Services Commissioner, Michael McGarvie, who is also the applicant in all disciplinary prosecutions of lawyers in Victoria.  Yet the CEO, qua Commissioner, is content for his staff to write about cases he is prosecuting, before any orders have been made and while the tribunal is considering what orders to make.  On the homepage of the Board + Commissioner’s website, no less.

If parliament is concerned to ensure that the reputation of practitioners is not to be ruined by accounts of current proceedings by one of the parties to them where the aspect of things might change dramatically upon appeal, or even by bad decisions in such proceedings which are to be appealed, it ought to consider adding the Commissioner to the class of person covered by the prohibition, and to make clear that neither the Board nor the Commissioner ought publish details of disciplinary prosecutions while they are before the disciplinary tribunal.

It is not uncommon for appellate courts — the Supreme Court or the Court of Appeal — to reverse decisions unfavourable to lawyers in disciplinary prosecutions of lawyers in VCAT’s Legal Practice List, or to substitute decisions more favourable to lawyers than those of VCAT or the legal regulators.  So the no publicity pending appeal proposition actually has some important work to do in the real world.  Consider, to name a few, Legal Services Commissioner v McDonald [2015] VSC 237PLP v McGarvie [2014] VSCA 253Stirling v Legal Services Commissioner  [2013] VSCA 374Burgess v Legal Services Commissioner [2013] VSCA 142Brereton v Legal Services Commissioner [2010] VSC 378Byrne v Marles [2008] VSCA 78, Quinn v Law Institute of Victoria [2007] VSCA 122Byrne v Law Institute of Victoria [2005] VSC 509. Consider also non-lawyers: Omant v Nursing and Midwifery Board of Australia [2014] VSC 512, and Towie v Medical Practitioners Board of Victoria [2008] VSCA 157 where the Court found that VCAT’s standard orders in disciplinary hearings were contrary to the privilege against penalties.  It will be observed that some of those decisions were made by very experienced members of VCAT’s Legal Practice List, and several by its Vice-President, a judge.

Continue reading “The Bureau de Spank’s obligation not to publish about disciplinary orders until lawyers’ appeal rights are spent”

VCAT gives expansive interpretation to civil complaint dispute resolution jurisdiction

Updated post: The decision is under appeal: Champion v Rohrt [2016] VSCA 64.

Original post: VCAT has taken a most expansive approach to its jurisdiction to rule on civil disputes involving lawyers in Rohrt v Champion [2015] VCAT 1875. The liquidator of a company served a notice on a solicitor under the Corporations Law, 2001 to deliver up documents in his possession relating to the affairs of the company in liquidation.  The solicitor did not respond, so the liquidator lodged a complaint with the Legal Services Commissioner.  Presumably, this could have been characterised as a disciplinary complaint, but whether it was so characterised or not, it was certainly characterised as a civil complaint.  To the extent that it was characterised as a disciplinary complaint, only the Commissioner would have standing to launch a prosecution in VCAT, so we can disregard that possibility as a possible source of jurisdiction, and VCAT expressly did so (at [31]).

What is interesting is that the Commissioner, and subsequently VCAT (since VCAT’s jurisdiction was squarely challenged by the solicitor) must have found that the complaint seeking delivery up of the papers demanded by the notice was a dispute between a person and the solicitor arising out of, or in relation to, the provision of legal services by the solicitor to that person.  See [31]. Since the Applicant was the liquidator, and not the company in liquidation which was the solicitor’s former client, presumably VCAT must have found that the solicitor provided legal services to the liquidator, or that the person with the dispute arising out of the provision of legal services need not be the person to whom the services were provided.  In fact, VCAT found that the solicitor’s argument that VCAT did not have the jurisdiction which the liquidator was seeking to invoke was so untenable as to warrant an order that he pay indemnity costs notwithstanding the presumption in such proceedings that there be no order as to costs at all. Continue reading “VCAT gives expansive interpretation to civil complaint dispute resolution jurisdiction”

VCAT’s President’s extra-judicial views on Barbaro in VCAT disciplinary hearings

In my last post, I briefly surveyed VCAT’s approach to the Barbaro principle in disciplinary proceedings against solicitors.  I just came across a presentation given by the Supreme Court’s Justice Garde, VCAT’s President which touches on this issue.  The presentation is titled ‘Alternative Dispute Resolution – Can it work for Administrative Law?’. It was given on 26 February 2014, and is linked to here.  The relevant part is: Continue reading “VCAT’s President’s extra-judicial views on Barbaro in VCAT disciplinary hearings”

Suburban solicitor tenders video of himself asking employee for sex 78 times in his own sexual harrassment case

A solicitor somewhere in Melbourne’s suburbs failed in his defence of sexual harrassment claims and was ordered by VCAT’s President, Justice Garde, to pay his victim compensation of $100,000: GLS v PLP [2013] VCAT 221.  The solicitor described the complainant as a fantasist when she said that he asked her for sex in a most unwelcome manner, except to the extent that her allegations were corroborated by a video he himself had surreptitiously made during which he asked her most vulgarly for sex 78 times in about an hour and which he tendered to prove that she was coming onto him. Weird. But that was all just to grab your attention.

Now for the saucy bit: the President rehearsed the authorities on the Briginshaw application of the civil standard of proof, reproduced in this post.  But it is also interesting in that the President expressly invoked the VCAT Act power to apply rules of evidence, and did so because serious allegations were being made.  In a case about a solicitor, and for the protection of the solicitor.  I don’t think I have seen that power expressly invoked in a VCAT decision before, except occasionally to reject the tender of particularly unreliable hearsay. Here’s hoping that it might be the start of the development of VCAT’s own de facto law of evidence, because a forum without any law of evidence is a strange beast, and a forum which has an unspoken de facto evidence regime undermines equality of access to it, creating an advantage in favour of those in the know, who will tend to be experienced users and lawyers. Continue reading “Suburban solicitor tenders video of himself asking employee for sex 78 times in his own sexual harrassment case”

Parties cannot by agreement give jurisdiction to a tribunal it does not have

Some things you learn the hard way.  One of my earliest appearances, as a young solicitor at a packed directions hearing before the notorious Master Patkin of the County Court, involved a discussion of the Court’s jurisdiction which I had not seen coming.  I suggested that the other side had consented to jurisdiction.  It earnt me a Socratic lecture, in public.  Here is what the law says, as recounted recently in Neill v Legal Profession Complaints Committee [2011] WASCA 48 at [7]:

‘In Pantorno v The Queen (1989) 166 CLR 466, the High Court made it clear that parties who agree a proposition of law cannot bind a court. Parties cannot by consent confer jurisdiction on a tribunal if none exists: see R v Moore (1976) 11 ALR 449 and Australian Education Union v Lawler (2008) 169 FCR 327 at [185].’

Of course it is not quite as simple as that.  Never is.  Creatures of statute may provide by the statute for the parties to agree on the creature having jurisdiction which it otherwise does not have.  The Magistrates’ Court Act, 1989, s. 100(1)(c), for example, provides for the parties to agree on the Court hearing a case where more than its jurisdictional limit of $100,000 is at stake.  Some imperfect knowledge of that proposition was what led me astray.

Lodging a civil complaint with the Legal Services Commissioner limits you to compensation of $25,000 per complaint

First of all, happy new year!

The take-home point of this post is that if you lodge a civil complaint (e.g. a pecuniary loss dispute or a costs dispute) with the Legal Services Commissioner, you limit the amount of compensation you can get in VCAT to $25,000 because of s. 4.3.2(1)(c) of the Legal Profession Act, 2004. That prevents the commencement of proceedings in relation to the subject matter of the complaint until the complaint has been finally determined, or dismissed, by which time it will often be res judicata, at least in those cases where the final determination is by VCAT or the Supreme Court or the Court of Appeal (subject, perhaps, to (i) the operation of s. 4.2.14(2), which is what the Court of Appeal calls the ‘two bites of the cherry’ provision, and (ii) the possibility of adding a Fair Trading Act, 1999 cause of action to a proceeding originally instituted in VCAT under the Legal Profession Act, 2004, discussed below).  In this touchy feely win win alternative dispute resolution Civil Procedure Act, 2010 world, it is apparently anomalous that those who choose to travel to VCAT’s Legal Practice List via the obvious alternative dispute resolution channel (i.e. via a civil complaint to the Commissioner’s dispute resolution jurisdiction) are penalised so severely in comparison with those who proceed immediately to litigation in that List by invoking the parallel jurisdiction of the Fair Trading Act, 1999. Continue reading “Lodging a civil complaint with the Legal Services Commissioner limits you to compensation of $25,000 per complaint”

Palm tree justice banned at VCAT

Justice Sifris banned palm tree justice in VCAT in a mercifully concise judgment: Christ Church Grammar School v Bosnich [2010] VSC 476, overturning President Morris’s decision in Law v MCI Technologies Pty Ltd [2006] VCAT 415, which was against the tide of NSW authorities.  Peter Riordan SC led Will Alstergren for the School. As the keener readers of this blog would be well aware, VCAT has a general jurisdiction, unlimited as to amount, in relation to disputes between the suppliers and recipients of goods and services, broadly defined.  In a sub-set of such disputes (consumer disputes and trader-trader disputes), it is empowered by s. 109(1) of the Fair Trading Act, 1999 to ‘make any order it considers fair’. The definition of ‘consumer disputes’ and ‘trader-trader disputes’ is at the end of the post. Oversimplified, however, they are disputes in relation to the supply of goods or services (a) for personal, household or domestic consumption, or (b) for a price of $10,000 or less. Continue reading “Palm tree justice banned at VCAT”

Is this the Legal Practice List’s biggest case?

Virgtel Ltd v Gadens Lawyers [2010] VCAT 1584 might be VCAT’s Legal Practice List’s highest value case.  Not all that long ago in the scheme of things, I remember learning that VCAT had certain jurisdictions which were unlimited, and realising that — shock! — it might hear cases which the Magistrates’ Court could not hear.  Well, this case is an application pursuant to s. 103 of the Legal Practice Act, 1996 to set aside a costs agreement pursuant to which bills totalling $2.3 million were charged.  That explains why two QCs faced off on a pre-trial application.

The respondents applied for summary dismissal under s. 75 of the VCAT Act, but advised the day before the hearing that they would withdraw it.  The applicants sought costs of the application.  Senior Member Howell granted that application, on a solicitor-client basis.  That was because the application was misconceived.  Its thesis was that there was no point making an order setting aside the costs agreement because all but one of the bills was out of time for taxation anyway.  But it did not follow from the unavailability of taxation that the fees billed by the respondents could not be adjusted.  As Senior Member Howell said: Continue reading “Is this the Legal Practice List’s biggest case?”

High Court says something about VCAT

In Osland v Secretary to the Department of Justice [2010] HCA 24, Chief Justice French, and Justices Gummow and Bell said:

The jurisdiction and powers of the Court of Appeal

17.  It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order of the Tribunal. That jurisdiction and those powers continued to define the functions of the Court on the remitter of the appeal for further hearing. The relevant jurisdiction and powers are set out in s 148 of the VCAT Act, which provides, inter alia: Continue reading “High Court says something about VCAT”

Can you serve VCAT proceedings on defendants outside Victoria?

In Gluyas v Google Inc [2010] VCAT 540, an Australian blogger sued Google in VCAT.  Google Inc is an American company.  VCAT struck out the suit on another basis, but indicated that there are no provisions for the service of VCAT applications on persons outside Australia, unlike in the Supreme Court, so that VCAT probably had no jurisdiction unless Google Inc consented to it exercising jurisdiction, which Google did not do.  Some tribunal proceedings with a link to Victoria may be served in other states and territories under Part 4 of the Service and Execution of Process Act, 1992.

Extra-territoriality of Victorian statutes

In Gluyas v Google Inc [2010] VCAT 540, an Australian blogger took Google to VCAT to complain about the content of a blog published in America on Google’s blogger platform.  The blog criticised people with the blogger’s disability. The blogger sought relief under the Equal Opportunity Act, 1995 (Vic.), claiming that Google had authorised or assisted the American blogger to discriminate against the class of persons suffering his disability, and against him personally.  The Act does prohibit such assistance and authorisation, but  Google applied to strike out the suit on the basis that the alleged conduct occurred in America, and the Equal Opportunity Act did not regulate the conduct of Americans in America, or in legal language, the Act did not have extra-territorial operation.  Deputy President McNamara agreed.  There is nothing startling about this application of well-worn principles, but this blog sometimes just restates things which people like me need reminding of from time to time. Continue reading “Extra-territoriality of Victorian statutes”

Changes to legal professional privilege operate retrospectively

They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now going to apply in relation to any particular communication.  If the Tax Man, or the Legal Services Commissioner, compels you to produce documents, the common law will apply.  If you produce them, the common law will determine whether the production amounts to a waiver.  If the investigation leads to court (but not VCAT) proceedings proceedings, to which the new law will apply, you might be compelled by subpoena to produce documents you successfully resisted producing in the investigation pursuant to the common law.  Furthermore, in those proceedings, the Court will decide for itself, under the new law, whether the production to the Commissioner in the investigation amounted to a waiver or not.

The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments.  Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial.  But there are differences too: Justice Byrne’s decision referred to below confirms it.

I blogged about the transitional provisions for the new legislation here.  It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act.  There is a presumption in statutory interpretation against the retrospective taking away of accrued rights.  But there is no such presumption in relation to changing procedures for the vindication of rights.

Someone has actually already run this esoteric argument.  In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta: Continue reading “Changes to legal professional privilege operate retrospectively”

Justice Ian Ross VCAT’s new President

According to the Victorian Bar, the Supreme Court’s Justice Ross has been appointed President of VCAT. That does not mean he is no longer a Supreme Court judge; he will be both.  Justice Morris, two Presidents ago, used to hear cases in both jurisdictions. It did not occur to me when his Honour leapt from VCAT to the Supreme Court recently (see my post at the time) that this might be in the wind; Justice Kevin Bell was appointed President only in March 2008, but it seems that was always a 2 year term.  It will be interesting to see whether Justice Ross will see much business in the Legal Practice List, to which he is accustomed.

VCAT’s Judge Ross appointed to the Supreme Court

Judge Iain Ross, who was the head honcho of VCAT’s Legal Practice List, and the Tribunal’s Vice-President, has been appointed to the Supreme Court, presumably taking up the spot left behind by a good and honourable man and quiet champion of human rights, Justice David Harper, who has been appointed to the Court of Appeal.  People from the generation before me typically seem to confuse him with Judge Les Ross, also a County Court judge, who retired in 2005.  Justice Ross was appointed a Vice-President of the Australian Industrial Relations Commission at the age of 35 in 1994, and was there until he went off to Corrs briefly in early 2006.  His Honour has been a County Court judge since 2007, and remained so as VCAT’s Vice-President. He was in charge of alternative dispute resolution at VCAT, and once referred to mediation my client’s application for orders compelling the Legal Services Commissioner to provide further and better particulars of a professional misconduct charge.  Austlii records numerous careful and thorough decisions of his Honour in Legal Practice List matters, many of which I have blogged.

I did not even know that his Honour had commenced hearing cases in his new role, but The Age‘s front page today records that he is hearing an appeal from VCAT in the case about the taxi driver who, long ago, stabbed his wife to death under the grip of a psychosis from which he has now recovered.  The case was XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy-President Macnamara who seems to have moved into Justice Ross’s old spot as head honcho of the Legal Practice List.  I posted about the decision here.  Attorney-General Hulls’s press release says:

Continue reading “VCAT’s Judge Ross appointed to the Supreme Court”