What can barristers charge for?

I gave a presentation at the really well organised Junior Bar Conference this year.  The Bar sought questions which the junior barristers who attended wanted answers to.  One question, which I thought odd, but which I answered  earnestly, was ‘What can a barrister charge for?’  This was my answer:

The starting position is freedom of contract, such that barristers can charge for whatever they can get someone to promise to pay. The costs provisions of the LPUL (the Legal Profession Uniform Law (Victoria)) mostly do not apply in favour of commercial or government clients and commercial and government third party payers. There is newly room, therefore, for much greater creativity in contracting with such clients. Note the application of some provisions about conditional costs agreements and contingency fees, however, even in relation to such clients and such third party payers: s. 170. Continue reading “What can barristers charge for?”

The Civil Procedure Act’s overarching obligation to keep costs proportionate

The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to

‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7. Continue reading “The Civil Procedure Act’s overarching obligation to keep costs proportionate”

Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it

Legal Services Commissioner v AL [2016] QCAT 237 is a decision of a disciplinary tribunal presided over by Justice David Thomas, President of QCAT and a Supreme Court judge. It is therefore of high persuasive value, and treats Queensland provisions which are the same as the equivalent Victorian provisions. And it provides what I suggest with respect are the correct answers to the following questions:

  • How negligent do you have to be before you can be found guilty of unsatisfactory professional conduct as defined in provisions which say that the concept includes ‘conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent’ lawyer holding a practising certificate? (Answer at [44] and [27]: substantial and very obvious fallings short of the standard, established by direct inferences from exact proofs.)
  • What must be pleaded specifically in a disciplinary charge? (Answer at [82] – [92]: all states of mind, not only dishonest intents, and all facts to be relied on (‘the charges to be levelled must be fully and adequately set out in the Discipline Application. As a matter of procedural fairness, the Practitioner should not be left in any doubt as to the extent of the allegations that is to be met.’)
  • To what extent is a disciplinary tribunal constrained in its decision making by the allegations specifically made in the charge? (Answer at [96] – [108]: absolutely: if no state of mind is alleged, the prosecution should not be allowed to call evidence as to state of mind; ‘it would be wrong to admit evidence the principal purpose of which is to establish conduct that lies beyond the ambit of the charge’.)
  • Does the mere fact that charges are not allowed on taxation mean that there has been overcharging such as to warrant discipline? (Answer at [76] – [77]: no)

The Tribunal dismissed charges against a solicitor who lodged a caveat pursuant to an equitable mortgage without checking that it satisfied the Statute of Frauds’ writing requirements and against a partner of her firm who took over her files when she was on holidays and billed the client for the work in attempting unsuccessfully to register the caveat.

I move from the specific facts of this QCAT case to general comment (what follows is certainly not veiled reference to the conduct of the Commissioner’s counsel in QCAT). There is a very real reason to insist on the particularization of states of mind in disciplinary tribunals, including particulars of actual and constructive knowledge. These details do not always get left out just because it is thought that disciplinary tribunals are not courts of pleading and such minutiae is not appropriate. Nor do they just get left out because they are thought to be inherent in the allegation, or because of incompetence, or mere mistake. Rather, they get left out because bureaucrats have investigated incompetently and when competent counsel come to plead disciplinary applications based on the investigation, they do not have a sufficient factual foundation to make these allegations, or perhaps are simply too timid.

But sometimes counsel with civil practices, untutored in the art of prosecutorial restraint, and safe in their private belief that the practitioner is in fact much more evil than incompetent investigation established, might fall prey to temptation. Mealy-mouthed, ambiguous allegations might be made which require the practitioner to get into the witness box. Then, all manner of unpleaded allegations as to states of mind and as to completely un-pleaded conduct, justified in relevance as tendency evidence or circumstantial evidence of the pleaded facts, might be cross-examined out of the practitioner and an unpleaded case presented to the disciplinary tribunal in closing. In a tribunal not bound by the rules of evidence, such questioning may be waved through with lip service to the proposition that objections will be dealt with by according appropriate weight to the evidence in the final analysis. Queensland leads the charge against such conduct, and I can’t help thinking it’s because Supreme Court judges seem to get involved in disciplinary decisions more often up there. All power to them. So impressed am I with this latest judgment, I have decided to go on a study tour of the Sunshine Coast in the September school holidays.

Continue reading “Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it”

Advocates’ immunity: at once more powerful and narrower than most yet understand

Advocates’ immunity was, until recently, more powerful than many lawyers were aware. Since the 1 July 2015 introduction of the Legal Profession Uniform Law and the High Court’s May 2016 decision in Attwells v Jackson Lallic Lawyers Pty Limited,[1] however, it may be narrower than many realise. And perhaps not everyone is aware that the immunity these days is very likely peculiar to Australia; it is certainly not a feature of English, American, Canadian, Continental, Indian, South African or New Zealand law.[2] Continue reading “Advocates’ immunity: at once more powerful and narrower than most yet understand”

What quality of work defences are available in a suit for fees where client did not seek taxation?

An Appeal Tribunal within the ACT Administrative Tribunal has put out a neat little decision which makes clear that where solicitors do work and bill it, where the client does not seek taxation within the time for doing so, and the solicitors sue for fees, the tribunal hearing the suit for fees still has, in the ACT at least, jurisdiction to consider defences based on the quality of the work. In particular, work which may be said to have been wasted by virtue of negligence on the part of the solicitor will not be allowed by the Court.  The lawyers in Williams Love & Nicol Lawyers Pty Ltd v Wearne [2016] ACAT 18 essentially argued that they were entitled to sue on their bills as a debt once the time for taxation had passed.

In this case, the lawyers had negligently drawn a response to allegations of misconduct by an employee without obtaining the foundational document in which the allegations were actually made.  When they belatedly obtained that document, the response had to be re-drawn.  The Tribunal drew a distinction between a defence of waste as a result of incompetence and an argument that the fees were not ‘fair and reasonable’ in a more general sense, and confirmed essentially that the client had foregone the opportunity to mount ‘fair and reasonable’ arguments by not seeking taxation of the solicitors’ fees.  Nevertheless, the Tribunal disallowed the suit for fees to the extent of the fees associated with the original drawing of the response. Continue reading “What quality of work defences are available in a suit for fees where client did not seek taxation?”

All-new High Court to hear advocates’ immunity appeal

The plurality judgment in the last decision of the High Court squarely about the advocates’ immunity was written by Chief Justice Gleeson and Justices Gummow, Hayne and Heydon JJ.  They have now retired from the Court.  As have the other judges who constituted the Court in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, Justices McHugh, Kirby and Callinan.  Now, a Court constituted by a selection of the current justices (Chief Justice French and Justices Kiefel, Bell, Gageler, Keane, Nettle and Gordon) will hear an appeal from the New South Wales Court of Appeal’s decision in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 (trial judge’s decision here, and special leave application transcript here: the application was heard by Justices Bell, Gageler and Gordon, and the appellant’s counsel was R. D. Newell), and the appeal seems set to be heard in November.  Lawyers allegedly negligently settled litigation, were sued for damages, and successfully invoked advocates’ immunity.

I have been thinking about these questions for a long time and many times as a lawyer representing solicitors and barristers, called on the immunity successfully.  I published the concisely titled ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ in 2002 at 10 Torts Law Journal 167 and would be happy to provide a copy upon request.  I was also in the High Court for argument of D’Orta-Ekenaike’s Case as one of the barrister respondent’s instructing solicitors.  I might even pop up to Canberra to watch the argument in this latest case.

It was third time lucky for a leave application in this kind of case, after the Court declined special leave in Young v Hones [2015] HCASL 73 (6 May 2015, Bell and Gageler JJ) and Nikolidis v Satouris [2015] HCASL 117 (4 August 2015, Nettle and Gordon JJ (‘Given the procedural history of those initial proceedings, including that the applicants agreed to settle those proceedings, the present case does not provide an appropriate vehicle for reconsidering [the immunity]’).

In the Court of Appeal, Chief Justice Bathurst, with whom Justices of Appeal Meagher and Ward agreed, reversed the decision of Harrison J.  The trial judge was quite frank: he said in a cri de cœur which met with little sympathy on appeal:

‘Notwithstanding all of the above, there remain at least two related matters that in my opinion are particularly troubling in this case, and which directly intersect with the way in which I am able to dispose of this application. The first matter is the apparent or potential strength of the plaintiffs’ allegations that the defendants have been negligent. As I have already commented, the plaintiffs would have been substantially better off if they had simply not defended the proceedings. The predicament that the judgment created for them is difficult to explain but even more difficult to understand. It is also difficult not to have a sense of unease about the possibility that an egregious error may go without the prospect of a remedy.’

Even if the immunity is not abolished, the decision has the potential to radically re-write the immunity landscape.  The other thing it will do is promote discussion of the immunity, see good people marshalling the increasingly excellent arguments in favour of its abolition, and provide the possibility (again) for legislative amendment or abolition.

What has happened since D’Orta-Ekenaike’s Case?  My (admittedly somewhat) Victorian-centric thinking suggests the following: Continue reading “All-new High Court to hear advocates’ immunity appeal”

White Industries v Flower & Hart: unfounded allegations of fraud

This post is a case note of Justice Goldberg’s famous decision in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169; [1998] FCA 806 as well as of associated decisions and surrounding controversy.  Because it is what I am working on at the moment, it concentrates on that part of the case which relates to the unjustified pleading settled by Ian Callinan QC and signed by his instructor Michael Meadows, alleging that the builder lied to the developer in relation to the cost of building a shopping centre just north of Brisbane.  It’s a big post, to kick off the year.

Facts (not all drawn from the judgments)

George Herscu died just before Christmas, aged 85. He was the alter ego of a property development group headed up by the Hersfield Development Corporation. According to 4 Corners, he was the biggest property developer in the country. According to The Australian, he lived in a Toorak mansion, owned a Melbourne Cup winner, and was once the third richest man in Australia after Robert Holmes a Court and Kerry Packer, one place ahead of Alan Bond.  He was a millionnaire by 30, and made and lost a fortune of $500 million.  He left Australia for California in 1997 and rebuilt substantial wealth.  Towards the end of his life, he was engaged in bitter litigation with his son, who described him as ready to spend whatever is needed to “crush anyone that stands in his way”.  Ironically, given what follows, Mr Herscu’s lawyers accused the son of mis-using the deposition process.  According to The Australian, they said:

‘Your clients’ continued insistence on trying to push an 80-year-old man with hypertension, a heart condition, failing hearing and many other health problems into a deposition room – having already deposed him for 27 hours – is shocking and wrong.  The only conclusion one can reasonably draw from your clients’ posture is that their litigation strategy involves attempting to subject George Herscu to so much stress and pressure he simply dies. To use the tools of discovery for this purpose is reprehensible, and indeed revolting.’

Very alarmingly, he was asked in those depositions about allegations that he had watered down the beer in a pub. Continue reading “White Industries v Flower & Hart: unfounded allegations of fraud”

The civil and disciplinary consequences of making an allegation of serious wrongdoing without a proper foundation

Friends, I need your help, again.  Certain promises I made to write about and present on the civil and disciplinary consequences of making allegations of serious wrongdoing (e.g. fraud) without a proper foundation are coming home to roost.  I’m looking at:

  • disciplinary sanction of lawyers via Legal Services Commissioner, etc. prosecution;
  • personal costs orders against lawyers;
  • costs consequences for parties (common law in relation to exercise of the unfettered discretion re solicitor-client rather than party-party costs and displacing the presumption that costs follow the event where allegations of fraud are not made out, and Civil Procedure Act 2010 (Vic.)); and
  • what is a ‘proper foundation’?

My miserable situation in this season of sun, frivolity and child-minding is a need to work out what these consequences are so that I can provide learned disquisition.  In the process I have learnt something about Dr Peter Clyne, the protagonist of Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40.  What a wonderful addition to my knowledge of the rogues’ gallery of which I consider myself a connoisseur; I even bought his autobiography on eBay today but his ‘How Not to Pay Your Debts’ is still available.  The Hikers described his conduct during the course of an ‘orgy of litigation’ between his client, the husband, and the wife as ‘irresponsible’, ‘mischievous’, ‘objectionable’, indefensible, ‘inexcusable’, and, rather wonderfully I think, ‘monstrous’.  A unanimous Dixon Court confirmed the good doctor’s striking off.  You can read about his life afterwards, including as a Magistrate in Zambia, here, and possibly less reliably, here.

So here is a general call-out for good authorities on these questions, especially decisions which really assist in understanding what a ‘proper factual foundation’ is, since many authorities relate to allegations which are so obviously unsustainable that they do not really illuminate where the line lies between the merely poor and the truly discreditable argument (Clyne), or proceed on the basis of admissions (AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02), or are fantastically complicated (the case just referred to and Victorian Bar Inc v CEM QC [2006] VCAT 1417).  I would also be very grateful for any detailed commentaries on this aspect of the conduct rules for solicitors and barristers alike, and Australian decisions in relation to costs (since many of those cited by Dal Pont are Canadian or English).

Reminder: you need very clear instructions before commencing proceedings on a person’s behalf

Updated, 23 June 2015: See Doulman v ACT Electronic Solutions Pty Limited (No 2) [2015] FCCA 1664

Updated, 16 July 2014: Brereton J summarised the authorities on this question in In the matter of HIH Insurance Limited (in liquidation); Smith v McGrath [2014] NSWSC 922 at [17], as follows:

‘Fundamentally, the extent of a lawyer’s authority depends on the construction of the retainer, in which terms can be implied as well as express [Hawkins Hill Gold Mining Co v Briscoe]. However, generally speaking, clear and specific words are required to authorise the institution of court proceedings Atkinson v Abbott; Wray v Kemp; Hawkins Hill Gold Mining Co v Briscoe]. This is because of the serious consequences, including in particular exposure to the possibility of adverse costs orders [City of Glenorchy v Addison]; and also because a solicitor ought not readily be implied to be authorised to decide whether or not to institute proceedings [Hawkins Hill Gold Mining Co v Briscoe; Atkinson v Abbott]. Where words to the effect of authorising “such further steps as may be necessary” follow the main object of the retainer, those words are not sufficient to authorise institution of proceedings where the specific words would not do so, the general words being restricted to what is necessary for the proper performance of the particular acts [Kemp v Wray; Knox Street Apartments v Flexman]. While authority to institute proceedings once given extends to final judgment and execution, it does not authorise institution of an appeal without further express instructions [James v Ricknell; In re Joseph Woolf; City of Glenorchy v Addison].’

Original post: Bray v Dye (No 2) [2010] VSC 152, a decision of Justice Judd, is a salutary reminder of the importance of solicitors getting very clear instructions from anyone on whose behalf they intend to commence or defend legal proceedings, and checking that they have capacity to engage in litigation (i.e. that they are of sound mind, and are not minors). In relation to this fundamental instruction in a retainer, it is more dangerous to rely on instructions through agents than it is to take instructions from agents in relation to steps in the litigation.  Get it wrong, and the lawyer will be ordered personally to pay adverse costs ordered against the phantom litigant, once the truth is ascertained, generally following an attempt at execution. That is what happened in this case: the solicitor and the barrister were substituted for the person on whose behalf they instituted proceedings, unbeknown to her, which failed and resulted in adverse costs orders.  According to the lawyers’ version of events, they did so on the basis of the second plaintiff’s oral instructions that he was authorised by the first plaintiff to instruct them to commence proceedings. Continue reading “Reminder: you need very clear instructions before commencing proceedings on a person’s behalf”

Misuse of statutory demand yields costs against solicitor personally

Gippreal Pty Ltd v Kurek Investments [2009] VSC 344 is yet another decision of Justice Pagone of interest to this blog.  I appreciate His Honour’s concision.  In this case, a creditor served a statutory demand knowing full well that there was an offsetting claim for more than the debt the subject of the demand.  The creditor’s solicitor knew too, and Justice Pagone ordered that the costs of the successful application to set aside the demand be paid by the solicitor personally.  The offsetting claim was a formal one, being:

‘a claim in pending proceedings which had been issued in this Court in a statement of claim signed by senior counsel. Rule 13.01 requires pleadings settled by counsel to be signed and that requirement is not a mere formality. The signature by counsel of a pleading has been described as a voucher that the case is not a mere fiction[4] and reflects the duties imposed upon counsel to be satisfied that proceedings have a cause of action sufficient to invoke the Court’s jurisdiction and sufficient to warrant exposing an opposing party to the risk of orders and Court sanction. The claim by [the debtor] against [the creditor] was on foot, the pleadings had not been struck out, the particulars had not been struck out, its existence had been reaffirmed on 3 March 2009 and, however imprecise the claim may have been, on no view could it be said that [the debtor] was asserting a claim it did not seriously maintain. [The creditors’ solicitors]  were aware of that claim as the solicitors on the record for [the creditor]. They knew that the proceeding was on foot when the statutory demand was issued. The assertion that the quantum of the claim was in excess of $80,000 may not be backed up by supporting material but it is not controverted with any opposing evidence. Furthermore, the nature of the claims made are essentially legal costs which it may be assumed that [a deponent] is well placed to estimate.

[4] Great Australian Gold Mining Co v Martin (1877) 5 Ch D 1, 10 (James LJ).’

His Honour noted that:

‘the mere insistence by a client that his, her or its legal practitioner undertake conduct which would otherwise expose a solicitor to an order for costs [a circumstance not present in this case] does not of itself justify the solicitor acting upon the client’s insistence. A solicitor is not always justified in acting as a client might insist.[5]

[5] Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300; Re Cooke (1889) 5 TLR, 408 (Lord Esher MR).’

Latest on claims for the other side’s lawyers to pay your costs personally instead of their client

Kelly v Jowett [2009] NSWCA 278 is the latest wasted costs case.  The lawyers against whom the order was made had tendered against them their own intra-office memorandum:

‘Your performance in the conduct of this matter has been pathetic. Your failure, given the recent transfer of these matters, to even have the courtesy to provide Hamad with a memo regarding the status of the file is totally inconsiderate of a colleague already burdened with some of your other similarly neglected files. This file is your mess, clean it up.’

Ooffa! Justice of Appeal McColl, with whom the other justices of appeal agreed, explained at [61] that: Continue reading “Latest on claims for the other side’s lawyers to pay your costs personally instead of their client”

Victorian judges more amenable to sophisticated costs orders in cases of partial success only

Update, 4 May 2009: For an example of these principles in operation in a professional negligence case in which proportionate liability was given effect to (I posted about the main decision here), see Sali v Metzke & Allen (No. 2) [2009] VSC 169, where the successful plaintiff’s costs were reduced by 30% because they raised and failed on numerous issues (and also because, reading between the lines, Justice Whelan was not very impressed by one of the plaintiff’s witnesses).

Original post: Costs have traditionally followed the event. Put up 5 reasons why you should get damages and win on 1 of them, and the starting point has been that you get the costs of the whole proceeding, including of the 4 causes of action which failed. Recent decisions of a Full Federal Court constituted by Victorians and of the Supreme Court have clearly signposted a desire in eminent Victorian judges to get sophisticated about costs so that claimants who propound claims which fail do not get (and may have to pay) the costs of doing so, even if they ‘win the case’. (This might be a good time for solicitors to think about amending that part of their standard costs disclosure letters which deals with s. 3.4.9(1)(g) of the Legal Profession Act, 2004 — range of costs likely to be recovered from the other side if successful.) Justice Robson’s 13,000 word decision on costs in GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296 may set a record for such judgments. Certainly, I would be surprised if there were another costs ruling with a table of contents. This is one conscientious judge. At [56]ff, his Honour said:

Continue reading “Victorian judges more amenable to sophisticated costs orders in cases of partial success only”

Trial judge’s order that plaintiff’s solicitor pay costs personally overturned

The New South Wales Court of Appeal overturned a trial judge’s order that the plaintiff’s solicitor personally pay costs of joining a particular party against whom leave to discontinue was successfully sought in the first days of the trial. The order was made under s. 348 of the NSW Legal Profession Act, 2004, in a division of the Act (Part 3.2, Div 10) headed “Costs in civil claims where no reasonable prospects of success”. Basten JA gave the lead judgment with which the other judges agreed. The case is Flower v Toro Contructions Pty Ltd [2008] NSWCA 178

Substantial personal costs order application against solicitor fails

The latest application for an order that a party’s solicitor pay the costs of proceedings personally is Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477. In dismissing the application, Justice McDougall commented:

‘[185] In theory, the courts are open to all. In practice, access to the courts is often dictated by the availability of financial resources. That is an unfortunate fact of life. It does not mean that those without resources should be barred from the courts, particularly where legal practitioners are prepared to accept instructions on a contingency basis.

[186] The policy underlying the power of the courts to order for security costs is based on different considerations. Undoubtedly, the exercise of that power has the effect from time to time of preventing arguable cases from being run. Where that happens, it should be pursuant to an order of a court on an application for security for costs, after balancing all relevant considerations. It should not be pursuant to a decision of a legal practitioner who is afraid to accept instructions from an impecunious client because the defendant, if successful, may obtain an order for costs against the legal practitioner personally.’

His Honour stated the law as follows: Continue reading “Substantial personal costs order application against solicitor fails”

NSW Court of Appeal on advocates’ immunity for out of court work

The NSW Court of Appeal dismissed an appeal from a decision finding that a solicitor was not immune from a negligence suit based on a failure to prepare evidence promptly, though its comments in relation to immunity were obiter dicta [102]. Although the evidence did get adduced after a change of solicitors and before the end of the trial, so that the solicitor’s client succeeded, the client was penalised when it came to costs for adducing the critical evidence at the last moment, contrary to case management pre-trial directions. Not only did the succeesful client not get an order that the other side repay its costs, but it was ordered to pay the other side’s costs. The decision is Walton v Efato Pty Ltd [2008] NSWCA 86. Another aspect of the decision is noted at this sister post. Justices of Appeal Beazley and Giles agreed with the lead judgment of Justice of Appeal Tobias.

What happened was that a creditor of a company served a statutory demand on a company. The company’s solicitor did not file and serve within the necessary 21 days the application to set it aside on the basis of a genuine dispute as to the existence of the debt. He did so out of time. So by operation of the Corporations Law, 2001, the company was presumed to be insolvent, and the courts had no power to extend the time retrospectively. Continue reading “NSW Court of Appeal on advocates’ immunity for out of court work”

2nd edition of Professional Liability in Australia reviewed

I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.

It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.

Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.

Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.

Continue reading “2nd edition of Professional Liability in Australia reviewed”

Full Federal Court explains its Rules’ wasted costs jurisdiction

In Macteldir Pty Limited v Roskov [2007] FCAFC 49, the subject of the last post but one, the Full Federal Court explained the ambit of Order 62 rule 9 of the Federal Court Rules (which is reproduced in the previous post):

The Relevant Principles
[56] The parties generally accepted as correct the statements of principle found in Levick v Commissioner of Taxation (2000) 102 FCR 155 at [43] and [44]. Thus, in a claim under O 62 r 9, it is necessary for a client to demonstrate a serious dereliction of duty by the legal practitioner or a failure on the part of the legal practitioner to fulfil a duty owed to the Court to aid in promoting, in the practitioner’s own sphere, the cause of justice. It will often be difficult for a court to know all of the details and circumstances of a legal practitioner’s instructions. Further, the Court must be concerned about the risk of a practice developing whereby legal practitioners endeavour to brow beat their opponents into aban-doning clients, or particular issues or arguments, for fear of a personal costs order being made. Continue reading “Full Federal Court explains its Rules’ wasted costs jurisdiction”

Advocates’ immunity and the wasted costs jurisdiction

In Macteldir Pty Limited v Roskov [2007] FCAFC 49, my old firm Middletons convinced a unanimous Full Federal Court to pronounce sternly that advocates’ immunity may not be circumvented by a client seeking to invoke the wasted costs jurisdiction of the Court against its own former lawyers, and to re-emphasise emphatically that the wasted costs jurisdiction is only to be exercised in the case of something akin to abuse of process, and certainly not merely negligent conduct.

The plaintiff sued its former solicitors and counsel, asking for an order that it did not have to pay its lawyers’ fees and that the lawyers pay the client some of the costs the client was ordered to pay the other side in the proceedings. In this post I suggest by way of additional note that the High Court has pronounced emphatically that lawyers are immune from suits which claim ‘wasted costs’, that is, a claim that the client incurred unnecessary expense by taking an unnecessary step, or that a costs order was made against the client in favour of the other side as a result of poor advocacy. Anyone have a contrary view? Continue reading “Advocates’ immunity and the wasted costs jurisdiction”