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Comments for The Australian Professional Liability Blog http://lawyerslawyer.net Stephen Warne on professional negligence, regulation and discipline around the world Sat, 02 Feb 2019 02:57:20 +0000 hourly 1 https://wordpress.org/?v=5.0.3 Comment on Costs in disciplinary prosecutions under the Legal Profession Act 2004: excellent news for disciplined solicitors? by Greg Finlayson http://lawyerslawyer.net/2019/02/01/costs-in-disciplinary-prosecutions-under-the-legal-profession-act-2004-excellent-news-for-disciplined-solicitors/#comment-25938 Sat, 02 Feb 2019 02:57:20 +0000 http://lawyerslawyer.net/?p=5495#comment-25938 Foots v Southern Cross Mine Management is a good case on when rights to costs accrue and I think it helps you. https://jade.io/article/18436

Comment on Costs of the lawyer litigant: judgments all over the place by Greg Finlayson http://lawyerslawyer.net/2017/10/23/costs-lawyer-litigant/#comment-25284 Sat, 19 Jan 2019 04:13:11 +0000 http://lawyerslawyer.net/?p=5254#comment-25284 The logic of reasoning ought dovetail with the cases regarding the costs of litigants using in-house lawyers. There are cases that this class of litigants can get costs on scale not related to the salary & overhead expense.

Comment on The ‘implied undertaking’ which is really a substantive legal obligation by Jeff Thompson http://lawyerslawyer.net/2017/08/15/implied-undertaking-really-substantive-legal-obligation/#comment-24516 Wed, 19 Dec 2018 06:12:16 +0000 http://lawyerslawyer.net/?p=5233#comment-24516 Another interesting case on this point of law is
Juman v. Doucette, [2008] 1 S.C.R. 157

“A party is not in general free to disclose discovery evidence of what they view as criminal conduct to the police or other strangers to the litigation without a court order.”

The strength of the obligation can clearly be understood with all 9 Judges of the Supreme Court of Canada concurring.

Comment on Costs of the lawyer litigant: judgments all over the place by Greg Finlayson http://lawyerslawyer.net/2017/10/23/costs-lawyer-litigant/#comment-24503 Mon, 05 Nov 2018 05:24:21 +0000 http://lawyerslawyer.net/?p=5254#comment-24503 I don’t think the case will tidy up the issue. It raises the issue of incorporated practice and makes the point that an incorporated practice is not self-representation.

Comment on No estimate of fees at outset results in 15% being knocked off by Connie Forsyth http://lawyerslawyer.net/2006/08/20/no-estimate-of-fees-at-outset-results-in-15-being-knocked-off/#comment-24496 Fri, 29 Jun 2018 17:03:21 +0000 http://abbotsfordblog.com/profneg/?p=48#comment-24496 The Cost Agreement provided by my legal practitioner outlined a range of estimates for my family law matter set out in 2 stages. Stage 1 estimated at $2,750 and stage 2 at TBA. Disbursement’s were estimated at $500 plus counsel fees (not disclosed). My total legal bill came to $899,000.

The other party, my X husband, has filed an appeal related to the property orders and my former lawyers have now commenced recovery proceedings in the District Court of NSW.

The Cost Agreement included a charge over a property that was part of the family law matter which resulted in a caveat over the property, claiming an interest in equity. The measures employed by the lawyers has ensured countless refusals for finance for the purpose of engaging legal representatives for either of the ongoing court matters.

‘Unsophisticated Clients Beware!’

These lawyers are ruthless, they pounced when they realised that I was undergoing major stress and anxiety due to an incident that led to an ADVO issued to my X husband by NSW police for the protection of myself and three daughters, four gun charges and an intimidation charge.

My faith in this profession has taken a devastating blow.

Comment on Is there an obligation to put in cross-examination that the witness is lying? by David h Denton QC http://lawyerslawyer.net/2017/11/06/obligation-put-cross-examination-witness-lying/#comment-24492 Mon, 26 Mar 2018 09:13:24 +0000 http://lawyerslawyer.net/?p=5262#comment-24492 Stephen, it is about time I congratulated you on this “ancient” blog. I have had recourse to your scribbling many a time over the years and they have assisted me in testing and sometimes forming my own views. Please keep at it.

Comment on Costs of the lawyer litigant: judgments all over the place by Graeme Arnold http://lawyerslawyer.net/2017/10/23/costs-lawyer-litigant/#comment-24483 Sun, 21 Jan 2018 21:38:26 +0000 http://lawyerslawyer.net/?p=5254#comment-24483 High Court has recently granted special leave in Coshott v Spencer/Barry [2017] HC Trans 263, so the HC seems keen to tidy this up.

Comment on The Civil Procedure Act’s overarching obligation to keep costs proportionate by Stephen Macras http://lawyerslawyer.net/2017/04/20/the-civil-procedure-acts-overarching-obligation-to-keep-costs-proportionate/#comment-23686 Fri, 08 Dec 2017 23:32:23 +0000 http://lawyerslawyer.net/?p=5113#comment-23686 Why would this not apply to Federal Courts?

In Rizeq v Western Australia, the Courts held by Bell, Gageler, Keane, Nettle, Gordon JJ that:
The overall result is that laws made by the Parliament of the Commonwealth and laws made by the Parliaments of the States form “a single though composite body of law”.

Arguably they would be picked up through the application of s79, as given in “An introduction to the jurisdiction of the Federal Court” by Allsop CJ (available on the website of the Federal Court), where he has written that State statute referring to the State Courts by name may be read as encompassing a federal court:

When a State statute is expressed to apply to courts generally, it will pick up a federal court: GPAO 196 CLR at 575 [34]; and Solomons 211 CLR at [37]. Also, even when the State statute refers to State courts by name, it may be read as encompassing a federal court: John Robertson 129 CLR 65; GPAO 196 CLR at 575 [34]; Austral Pacific 203 CLR at 143 [13]; Edensor 204 CLR at 588-89, 591, 593-4 [59]-[60], [68], [72]-[75]; and Macleod v ASIC 211 CLR 287 at [10].

This is not some fictitious piece of statutory construction of a State statute. It is not changing the substance of the law picked up. The State law has been “federalised” by s 79 and must be made to operate for courts exercising federal jurisdiction and so as not to undermine s 77(ii). In Edensor 204 CLR 559, McHugh J emphasised the way s 79, for a federal purpose and as a federal law, picked up the substance of the State law insofar as it can be applied. At [137] and [141] his Honour said the following:

[137] The fact that a State statute either expressly or as a matter of construction provides only for State courts to enforce its provisions does not mean that it cannot be “picked up” and applied by s 79 of the Judiciary Act in the exercise of federal jurisdiction. The hypothesis to which Mason J referred in John Robertson , which must apply to substantive as well as procedural laws, will ensure its applicability in federal jurisdiction unless the statute is not applicable for some reason other than that State courts were intended by the State as the instruments for enforcing it. …

[141] [C] ourts exercising federal jurisdiction should operate on the hypothesis that s 79 will apply the substance of any relevant State law in so far as it can be applied. The efficacy of federal jurisdiction would be seriously impaired if State statutes were held to be inapplicable in federal jurisdiction by reason of their literal terms or verbal distinctions and without reference to their substance.

I mean if the Criminal Procedure Act gets picked up by a court when exercising it’s federal jurisdiction all the way up to the federal courts, then it makes sense that the Civil Procedure Act would also get picked up by the Federal Courts – even though the courts are specifically named in that Act.

Comment on Never before, never again: Chief Justice of Norfolk Island gets a gig in the Victorian Court of Appeal by Mal PARK http://lawyerslawyer.net/2008/04/18/never-before-never-again-chief-justice-of-norfolk-island-gets-a-gig-in-the-victorian-court-of-appeal/#comment-23574 Mon, 04 Dec 2017 02:35:47 +0000 http://lawyerslawyer.net/2008/04/18/never-before-never-again-chief-justice-of-norfolk-island-gets-a-gig-in-the-victorian-court-of-appeal/#comment-23574 It is in AUSTLII.edu.ay at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nf/NFSC//2016/1.html

Comment on Costs of the lawyer litigant: judgments all over the place by Graeme Arnold http://lawyerslawyer.net/2017/10/23/costs-lawyer-litigant/#comment-23094 Tue, 14 Nov 2017 01:17:05 +0000 http://lawyerslawyer.net/?p=5254#comment-23094 South Australia has recently affirmed the principle applies, and cited Rogers v Roche – Steicke v Connolly & Co [2017] SASC 99.