In Legal Services Commissioner v DS [2010] VCAT 1124, a solicitor gave an undertaking but did not comply with it in a reasonable time.  Eventually, she did, paying the money out of here own pocket.  This was the decision in relation to penalty for the finding that she had engaged in professional misconduct: [Read more →]

On Tuesday week, the 17th, Michael McGarvie, Victoria’s somewhat-new Legal Services Commissioner (he has been Commissioner or Acting Commissioner for coming on 10 months) is going to give a talk at the Leo Cussen Institute at 5.30 p.m.  Mr McGarvie has acknowledged the need to build trust with the profession, and to reduce the extraordinary delays in complaint handling with which his predecessors have been associated.  The jury is still out in those regards, but it is early days, and at least change is being pursued, some of which sounds quite promising. Leos bill the ‘unique’ event, which will cost you a mere $95, as follows: [Read more →]

Many new decisions of interest are coming out and I will not have time to blog them any time soon as I have to go to University and concentrate on my latest and hopefully last field of study, Shareholders Rights and Remedies.  Here are some pointers in case you want to read this slew of the new yourself.

Here is a landmark English case on illegally obtained evidence in civil proceedings: Imerman v Tchenguiz [2010] EWCA Civ 908, and CMS Cameron McKenna’s case note.  A husband in business with his wife’s brother separated from his wife.  Worried that he would hide assets from the wife, the brother copied information from the husband’s computer.  The English Court of Appeal refused to admit the evidence.  One of the little changes wrought by the Victorian Evidence Act, 2008 is to make clear that illegally obtained evidence may be inadmissible in civil proceedings as much as in criminal proceedings.

Then there is a mega-solicitor’s negligence decision from NSW’s District Court’s Judge Levy: Mills v Bale [2010] NSWDC 162.  It was a regretted settlement case of the kind I wrote about in ‘Compromise of litigation and lawyers’ liability’ (2002) 10 Torts Law Journal 267.  The client accepted a fraction of his claim on the basis of advice that the other side had ‘damning video evidence’ and that he might get nothing if he went to trial. The solicitor had no file note of the relevant conversation and no recollection of the alleged events. The client won more than $700,000, a rare victory since such cases do not often succeed. The judgment is 807 paragraphs long.  Analysis of the witnesses’ credit occupies 100 paragraphs.

Two from Victoria’s Court of Appeal:

• First, Justice of Appeal Ashley with whom Acting Justice of Appeal Beach agreed, pronounced the latest chapter in the extraordinary saga of Shaw v Gadens Lawyers, another victory for professional negligence specialist Sam Tatarka.  It has not been published on Austlii, but was delivered on 3 August 2010. The Court confirmed that when VCAT determines civil disputes involving compensation claims, they do not entertain a cause of action created by the Legal Profession Act, 2004.  Rather, they are given a statutory grant to hear professional negligence cases according to common law principles.  Let me know if you want a copy.
• Secondly, the latest in the saga of Byrne v Marles (see this earlier post about the earlier decision which threw the Legal Services Commissioner’s office into chaos): Byrne v Legal Services Commissioner [2010] VSCA 162.  Mr Byrne successfully sought judicial review of the Commissioner’s decision to characterise a complainant’s complaint as a disciplinary complaint.  The Appealohs held that there was a breach of natural justice in failing to provide an opportunity for the solicitor to be heard on that question.  The Commissioner appears then to have written to every complainant and given them an opportunity to make submissions.  Mr Byrne made submissions, and the Commissioner, unmoved, came to the same decision.  He sought judicial review of that, and that is what this decision is about.  He failed, but along the way, had the former Commissioner re-spanked.  The former Commissioner’s reasons for reaffirming her original classification, absolutely typical of the reasons I have seen her give in a template-like manner, over and over, were described by Justice of Appeal Ashley at [96] as ‘too smart by half. They invited further proceedings’.  In fact, his Honour found at [63] that they were not reasons at all; they were just a statement of the conclusion which the reasons should have supported.

Another decision of the utmost importance to this blog, which again passed me by, is the decision of New Zealand’s Supreme Court (equivalent to our High Court) in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1; [2008] NZSC 55.  More to come, needless to say.  Meanwhile, You will appreciate my interest in the case when you consider that the Chief Justice opined that disciplinary proceedings making serious allegations should be proved on the criminal standard of proof (remember what Justice Finkelstein said about disciplinary proceedings?), as opposed to the civil burden as explained in Briginshaw v Briginshaw.  Paragraph no. 1 of the Chief Justice’s reasons said: [Read more →]

In Braceforce Warehousing Ltd –v- Mediterranean Shipping Company (UK) Ltd [2009] EWHC 3839 (QB) the English High Court’s Justice Ramsay suggested, in dicta, that the limitation legislation had nothing to say about when a contractual alternative dispute resolution scheme may be commenced.  In this case, it was an expert determination clause.  Drafters of such clauses would be wise to include a contractual limitation provision.  Here is the case note of an English firm, Boyes Turner.

Herewith an extract from von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172:

’1 Ms von Reisner was successful before us in an appeal against an order made on 31 March 2009 that she not be able to commence any proceedings in this Court without prior leave of the Court: see (2009) 177 FCR 531.

…

ORDER FOR COSTS AGAINST THE JUDGE

20 Finally, Ms von Reisner has sought an order that the primary judge be ordered to pay the costs. [Read more →]

Given how often companies execute documents, and the consequences of getting it wrong, I have always found the law on the subject weirdly complicated.  Perhaps that’s just because I’m a litigator and never quite cottoned on to a commercial lawyer’s basic skill.  But a beautifully written Clayton Utz file note by John Elliott, about Vero Insurance Ltd v Kassem [2010] NSWSC 838 winningly entitled ‘Sometimes You Do Have to Sweat the Small Stuff” suggests that there may be others with difficulties in this area of the law.  Vero tried to vote at a creditors meeting (an insolvency law procedure) by a proxy signed by its ‘Executive Director’.  That did not comply with s. 127 of the Corporations Act, 1991 which said: [Read more →]

In Michaels v Daley [2010] VCAT 1205, Senior Member Howell advised that:

’12    It usually is an implied term of the engagement of a legal practitioner, at hourly rates, that the work will be performed efficiently. It is an implied term of the kind that “goes without saying”, to adopt the phrase used by the Privy Council in B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1978) 52 ALJR 20 @ 26. It goes without saying that a client does not agree to a practitioner acting inefficiently, by spending an excessive amount of time performing legal work, only to be rewarded for every hour of inefficiency.’

Who knew?  Breach of the implied duty no doubt carries an entitlement to damages, and every suit for fees can be turned into a taxation, so long as ‘efficiently’ means the same as the concept of ‘necessary or proper’ in the law of taxation.

I turned up to run a trial recently in which orders had been made for witness statements by consent, and witness statements had been filed and served.  The trial judge simply advised he would not stand for written evidence regardless of what some other judge had ordered, and required the witnesses to give their evidence orally.  Luckily the witness statement was actually my client’s evidence, not something dreamt up for him by a lawyer, and he was able to give oral evidence successfully.

There are those who rail against affidavits, or at least their over-use.  I can understand why the judges do it. My understanding of a matter before and after a conference with my client — something I pursue avidly — is a very different thing.  The railings are well summed up by Justice Pembroke who had unusual cause to rail.  At his Honour’s welcome in April, he was described like this:

‘Your Honour was an economical barrister in the best sense of the term. Your Honour’s arguments were always well structured, concise and dealt only with the points that were worth arguing.’

This judge was forced to read a 6,657 paragraph affidavit which he described as ‘gallimaufry’.  (There seems to be a lot of confused jumbles passing through the NSW Supreme Court this year: of the seven decisions published on Austlii in which the word ‘gallimaufry’ is found, three post-date mid-April and emanate from that Court. An unrepresented litigant seems to have reintroduced the word into the judicial vocabulary by a submission recorded by Justice McCallum: ‘Mr Rahman contends, among other things, that the orders previously made by me are evidence of my mind and intellect “in a state of gallimaufry.”‘)

His Honour ordered that evidence be given orally, repeating the quip attributed to Lord Buckmaster that ‘the truth sometimes leaks out of an affidavit – like water from the bottom of a well’.  In full, his Honour’s comments were: [Read more →]

As a lawyer, I am often tempted to do the wrong thing.  It is a very desirable thing to win.  But I have never felt tempted to forge a judge’s signature.  It is thought that a lawyer in the Office of Public Prosecutions did exactly that.  He is charged with attempting to pervert the course of justice, misconduct in a public office, and making a false document.

For English news, I have switched from reading The Times‘s legal affairs section to The Guardian‘s.  The Times wanted me to pay to read, and I said no.  I am not a connoisseur of international newspapers, but from what I can tell, The Guardian is the best newspaper in the world, so I am happy to have discovered its legal section.  International in outlook, it brings welcome news of the law in under-reported areas of the world.

England is in the throes of massive change to lawyer regulation.  CMS Cameron McKenna has published an article entitled ‘Solicitors PI: Counting the Cost of Improved Legal Regulation’.  Self-regulation, Joe Bryant says, is ‘irretrievably abandoned’.  The new Legal Services Board will run extensive and expensive advertising about the new regime.  There is a new body named in a way not to leave anything to the imagination — the Office for Legal Complaints, tipped to have jurisdiction to make awards of up to AU$170,000 on the papers.  And it’s all going to increase the costs of doing business as a lawyer.   Of the OLC, the article says: [Read more →]