In Polglaze v The Veterinary Practitioners Board of NSW [2010] NSWCA 4, the NSW Court of Appeal did not seem to be impressed about an appeal reaching them in relation to a finding of unsatisfactory professional  conduct in failing to warn the owner of a dog-patient that a second sedating injection was going to cost her. The fine had been $200. It was not in dispute that the vet had not given the warning. Nevertheless, the vet trotted out as an appeal point the well-worn chestnut of inadequate consideration of the Briginshaw principle that the more serious the allegations, the more persuasive must be the proof of them.  All of the appeal judges dismissed the point summarily.  They all said that given that the non-giving of the warning was not in dispute, there was no evidentiary controversy to which Briginshaw could have operation.  Anyway, Acting Justice of Appeal Handley said, ‘I would not readily accept that the Tribunal, which hears many disciplinary cases against members of the professions, would fail to direct itself in accordance with [the Briginshaw] test.’ Justice of Appeal Beazley agreed.  More interestingly, however, Justice of Appeal Basten said, by way of additional comments at [18]ff:

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Do things move slowly in Western Australia?  I wrote about an estate matter which went on and on and on here.  Now a twenty-seven year old proceeding, which came to have as one of its defendants a famous QC has been dismissed for want of prosecution and the decision confirmed on appeal: Smith v Bank of Western Australia [2010] WASCA 15.  The QC investigated Moira Rayner, and defended the QC disciplined for having taken to the media during the course of the Schapelle Corby saga.  Anyone know of a proceeding which has been on foot for longer?

The distinction between ‘professional misconduct’ and ‘unsatisfactory professional conduct’ is usually elusive.  Guidance from an appellate court in relation to cognate legislation is therefore valuable.  It seems that one instance of ‘incredibly sloppy’ work involving innocent false representations being made to the other side, if it is comprised of a series of closely related bits of conduct in relation to the one matter, is not what is contemplated by the words ’substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’.  CYX v Council of the Law Society of NSW [2009] NSWCA 430 (previously blogged here) is a decision I regard as indicating an appropriately restrictive approach to identifying ‘professional misconduct’, a finding which should carry with it the opprobrium associated with the worst professional wrongs.  The NSW Court of Appeal overturned a finding by New South Wales’s Administrative Appeals Tribunal’s of professional misconduct. [Read more →]

The short answer is — yes. Jack Brabham Engines Ltd v Beare [2010] FCA 35 is a decision on an application to set aside a subpoena.  One of the plaintiffs subpoenaed the police to produce the ‘criminal history records’ of one of the respondents.  The plaintiff said the documents were potentially relevant to the credit of the respondent.  Evidently, there was some evidence in the case, admitted subject to the resolution of objections ‘relating to the conduct of [the respondent] involving the police and alleged offences which … would or could be of apparent relevance to the matters between the parties in this case.’ So the subpoena could not be regarded as just a fishing expedition. The credibility of the defendant’s evidence was likely to be important for the resolution of the case.  Relatively recently appointed Justice Jayne Jagot found that the subpoena was not an abuse of process and refused to set it aside.  Her Honour emphasised, however, that the fact that she refused to set aside the subpoena was only phase one in the multi-phase life of a subpoena. [Read more →]

Several times I have wondered, in my short career so far, whether a loan or other commercial agreement which provides for interest at a particular rate should be construed as providing for simple or compound interest.  My presumption has been that such a provision would be interpreted to provide for simple interest unless compound interest is specified.  Surprisingly, that is not the law; there is no presumption.  The question is to be resolved by reference to orthodox principles of ascertaining the parties’ intentions without resort to presumptions of law.  In Decorrado v Manoukian [2009] VSC 451, Justice Vickery explained the law, and applied it as follows: [Read more →]

In Victoria, you can enforce a judgment for up to 15 years: s. 5(4) Limitation of Actions Act, 1958 (Vic.).  During that time, the judgment debt earns interest at a nice little rate, the penalty interest rate: s. 101 Supreme Court Act, 1986.  As of yesterday, the penalty interest rate is 10.5%, while the cash target rate you hear about in the news and on bank statements for your mortgage is, as of today — surprise! — still 3.75%.  And there is no discretion involved, unlike the interest which accrues at the same rate between commencement of proceedings and judgment: Hartley Poynton Ltd v Ali [2005] VSCA 53.  Typically, in superior courts, judgment is given on the claim, and an order made for the winner to pay the loser’s costs.  Working out how much the loser has to pay, however, takes time. The process is known as ‘taxation’.  First a costs consultant usually draws up a bill of costs in taxable form.  Then there are negotiations, and if they do not succeed there is a trial of the question of how much costs the winner pays the loser, generally after a long wait for a court date.  At the end of that, the court gives another judgment of sorts.

From when does s. 101 interest run on that part of the judgment requiring the loser to pay the winner’s costs? [Read more →]

In AM v Legal Practitioners Disciplinary Tribunal [2010] NTSC 02, a Full Court of the Supreme Court of the Northern Territory heard an appeal by way of rehearing into a decision of the Disciplinary Tribunal (see my earlier post on the case).  One of the grounds of appeal was that the Tribunal had not had jurisdiction. The Law Society of the Northern Territory argued that whether or not the Legal Practitioners Disciplinary Tribunal had had jurisdiction, the matter was now before the Court on a rehearing and it could exercise its inherent jurisdiction, rendering the fascinating jurisdictional questions irrelevant.  ‘I don’t think so!’, said the Chief Justice, with whom Justice Riley agreed.  ‘Wrong way, go back!’ they said with emphasis, noting that the Northern Territory was not the wild West:

‘[159] The Law Society submitted that if this Court was of the view that the Tribunal lacked jurisdiction, as the evidence and the matter of the practitioner’s conduct is now before the Court, it should exercise its inherent jurisdiction over the profession by dealing with the practitioner in respect of her conduct. This approach would require this Court to rely on evidence placed before the Tribunal in the course of invalid proceedings. Counsel for the practitioner submitted that as the Law Society chose the Tribunal route, it would be inappropriate for this Court to exercise other than the appellate jurisdiction. As counsel put it it is “counter-intuitive” to make use of material put before the Tribunal and, if the Tribunal lacked jurisdiction, justice demands a fresh proceeding. To exercise the inherent jurisdiction de novo would involve formulating a charge and carrying the baggage of the old proceedings. Overall, suggested counsel, exercising the inherent jurisdiction would carry with it a flavour of the “wild west”.

[160] In my view, there is considerable force in the submissions of counsel for the practitioner. If I am wrong in my view that the Tribunal possessed jurisdiction, in my opinion this Court should not endeavour to exercise its inherent jurisdiction.’

In the many panics during the Bar Readers’ Course when I was expected to adventure incompetently into the criminal law, the criminal lawyers whom I made sure to be nice to referred me to ‘the Bible’, Ross on Crime. Leafing through it disconsolately one day, I noticed the chapter entitled ‘Jazz’.  What a revelation.  After that, I knew he was a character, but not until I read his obituary in The Age did I realise how much of a character the Bar has lost.  I wonder whether the very English form of academic eccentricity which has always been a halmark of the Bar, and the qualities of true professionalism which it sounds like Ross personified, are on the wane, whether any of my contemparies will be David Rosses of the future.

I never met the man who passed away recently having succumbed to motor neurone disease.  I did read his book on advocacy, Advocacy.  It is beautifully written, short.

Solicitors and barristers are obliged not to make allegations of criminality, fraud or other serious wrongdoing in ‘court documents’ without an adequate factual foundation. The rule for Victorian barristers is rule 34. This post explores what ‘court documents’ are, what ‘fraud’ means in this context, and what an adequate factual foundation is, in part by looking again at AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02, treated in the previous post, a decision of the Full Court of the Supreme Court of the Northern Territory.  It also notes a bizarre anomaly between the rules which govern Victorian and other states’ solicitors and between the rules which govern Victorian solicitors and Victorian barristers in this regard. [Read more →]

A Full Court of the Supreme Court of the Northern Territory delivered judgment in AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02 a week ago. The Darwin lawyer, AM, lodged a complaint with the NT Law Society alleging that a competitor firm, Cridlands, which used to act for her client, had acted in the face of a conflict of duties.  That complaint was dismissed.  The Law Society then turned the lens on the author of the complaint and investigated her for making allegations of serious impropriety without a proper evidentiary foundation.  She was successfully prosecuted and her appeal failed. The Supreme Court confirmed the decision of the Legal Practitioners Disciplinary Tribunal (here and, in relation to penalty, here), finding the lawyer guilty of professional misconduct.  According to the NT News, the lawyer was ordered publicly to apologise to the lawyers about whom the complaint was made, complete professional conduct and ethics courses, and ordered to pay a fine of $19,500.  The costs bill is presumably very high.

The duty which was breached was formulated at [141] as follows:

‘the obligation carried by a legal practitioner is to take care when making serious allegations of impropriety against another on behalf of a client. The obligation arises not only when making allegations or preparing pleadings in a court proceeding but in other situations where the practitioner is protected by privilege and, indeed, in all circumstances, to maintain standards of decency and fairness. The appropriate standard of care is exercised by ensuring that there is evidence upon which allegations might be made and in the light of that evidence by seeking specific instructions in relation to the allegations.’

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