Woman bankrupted because of solicitor’s failure to attend court suffered no loss

Mitchell’s Case [2005] VLPT 1

A client’s claim for compensation in a pecuniary loss dispute failed because she adduced no evidence that had she not been declared bankrupt by reason of her solicitor’s negligent failure to turn up to court, she could have avoided bankruptcy on any better basis than she did by paying out the full amount owing to creditors. She was criticised for not applying to set the bankruptcy aside before suing the solicitor. The decision is a shining example of the capacity of causation defences to succeed even in the face of plain negligence. Continue reading “Woman bankrupted because of solicitor’s failure to attend court suffered no loss”

On the perils of the undersupervised law clerk

Legal Practitioners Complaints Committee and JCB [2005] WASAT 213

A sole practitoner dictated many precedent letters for his routine suburban personal injuries practice. His law clerk of 16 years’ experience, an arts graduate and a one-time law student, did all the work in a workers compensation file: she took instructions, signed letters taken from the precedent bank, negotiated with the counterparty, and was charged out at $240 per hour plus GST and $30 per short letter, $50 per one-page letter and $70 per long letter. The solicitor was unable convincingly to establish that he had done anything very much at all.

He was found guilty of “neglect” in failing properly to supervise the clerk and of “unprofessional conduct” in grossly overcharging. The first finding gave rise to a reprimand, the second to a $2,000 fine. Costs claimed at $10,000 were allowed at only $5,000 on the basis that the solicitor successfully resisted a third charge of constructively misrepresenting that the law clerk was a solicitor and on the basis that the retention of senior counsel by the prosecuting Committee was unnecessary. The third charge failed because no evidence was sought to be adduced of the solicitor’s complicity in the alleged deception, a timely reminder of an oft-forgotten principle that there is no disciplinary version of vicarious liability (a different concept from the wrong of failure to supervise). The law as to the supervision of clerks is well summarised in a neat and detailed judgment of Justice Barker, a Supreme Court Judge.

Continue reading “On the perils of the undersupervised law clerk”

Multiple claims and the $15,000 limit on power

Tweed on behalf of National Exchange Pty Ltd v Griffin Law Firm [2006] VCAT 1305

A solicitor was retained to pursue parties for breaches of contract involving small sums. He fell into dispute with the client in relation to fees in 376 such matters. Mr Howell found there were 376 separate disputes each for less than the jurisdictional limit so that he had jurisdiction, and refused an application for dismissal under the power to dismiss disputes which would be more appropriately heard by a court. Continue reading “Multiple claims and the $15,000 limit on power”

Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy

Kaiser v Faulkner [2006] VCAT 1302

What this case illustrates is simply that upon bankruptcy the right to seek compensation or the waiver or diminution of legal costs through the dispute process under the Legal Practice Act, 1996 vests in the trustee in bankruptcy and never revests in the bankrupt even if not taken up by the trustee. Continue reading “Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy”

Epic battle re trust monies results in misconduct finding against barrister

Victorian Bar Inc v DAP No. 6 [2006] VCAT 1226

A barrister banked $50,000 into his personal account, arguing that it was a “retainer” and not monies held on account of future fees. VCAT found that it could not have been a retainer because that is a modest fee paid to a barrister to prevent them from acting against the payer, and the barrister already could not act against the complainant at the time of the payment because of his close involvement as his counsel over many years prior to the payment. The difference between “wilful” and “reckless” breach of the Legal Practice Act, 1996 or rules of conduct was explained. The interlocutory decisions in this matter were digested earlier. Continue reading “Epic battle re trust monies results in misconduct finding against barrister”

No estimate of fees at outset results in 15% being knocked off

Ieremia’s Case [2006] VCAT 1419

A solicitor signed his client up to a no-win no-fee costs agreement on County Court Scale C in relation to a weekly payments dispute with Workcover. The weekly payments were reinstated as a result of the solicitor’s work, though Workcover did not permit him to attend the conciliation at which that result was achieved. He did provide written submissions in advance of the conciliation, however. Because he failed to provide any estimate of fees at all, Mr Howell knocked 15% of his bill for about $1,400 for disbursements includes $1800 for professional fees and ordered the client to pay the discounted amount. Continue reading “No estimate of fees at outset results in 15% being knocked off”

Solicitor uses VCAT’s civil jurisdiction successfully to sue for fees

Property and Business Commercial Lawyers v Dean [2006] VCAT 1492

The work of VCAT’s Legal Practice List extends beyond the work formerly carried out by the Legal Profession Tribunal, as evidenced by this decision of Senior Member Howell upholding a solicitor’s suit for fees against his former client. The solicitor quoted $650 for a conveyace and 1.5 hours’ work at $250 per hour in relation to the documentation of a loan. The course of the retainer changed and it was common ground more was involved than originally anticipated. A bill was delivered for $1,792, double the estimate. The failure to give an updated estimate under s. 89 of the Legal Practice Act, 1996 was of no consequence to the solicitor’s suit for fees: it had effect only on the taxation of a bill of costs or in a costs dispute: s. 91. This was neither; it was a simple civil suit for fees brought by the solicitor in VCAT under the Fair Trading Act, 1999 (Vic.). Mr Howell indicated that had s. 91 had application he would have knocked 10% off the bill. He ordered the client to pay the bill and awarded interest on it. Continue reading “Solicitor uses VCAT’s civil jurisdiction successfully to sue for fees”

Queensland Legal Services Commissioner

The Office of the Queensland Legal Services Commissioner has, like VCAT, set up a searchable full-text database of disciplinary decisions in Queensland. A Queensland case on gross overcharging, resulting in a 12 month holiday for the solicitor caught my eye: Council of the Queensland Law Society Inc v Roche [2003] QCA 469. It is full of expressions like “inexcusable rapacity”. One of the charges was 12 minutes for wrapping a box of chocolates.

Conway v Ratiu: solicitors’ fiduciary duties

Conway v Ratiu [2005] EWCA Civ 1302, [2006] 1 All ER 571 (note), [2005] All ER (D) 103 (Nov) (full decision) English Court of Appeal (Auld LJ gave the lead decision with which Laws and Sedley LJJ agreed)

This report is an extract of 10 paragraphs from a defamation case in which, somehow or other, it was necessary to consider the nature of the solicitor’s fiduciary duty to the client. Lord Millett said in the leading modern English authority on conflicts between duties of confidentiality and of disclosure (that is, current client / past client conflicts) that the fiduciary duty terminates with the retainer, leaving only a duty of confidentiality. That is in a sense the principle taken issue with by Brooking JA in Spincode. Lord Justice Auld noted the principle had been wound back in Hilton v Barker Booth and Eastwood (a firm) [2005] UKHL at [28]-[30], and this proposition from Longstaff v Birtles [2001] EWCA Civ 1219 was cited with approval:

“The source of the [fiduciary] duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence, from which flow obligations of loyalty and transparency. As long as that confidential relationship exists the solicitor must not place himself in a position where his duty to act in the interests of the confiding party and his personal interest … may conflict”. Continue reading “Conway v Ratiu: solicitors’ fiduciary duties”

Open offer under cover of denial of negligence averts hearing

Chen’s Case [2006] VCAT 748 (Senior Member Howell): costs; s. 132(b); s. 133(2); s. 407 (see the associated disciplinary decision here)

A solicitor averted being found negligent by openly offering to pay the claimant the maximum amount VCAT could award under cover of a denial of negligence. Mr Howell found that it would not be “fair” to put the solicitor through a hearing only to determine negligence. Continue reading “Open offer under cover of denial of negligence averts hearing”

Costs of prosecutor’s in-house lawyers

Law Institute of Victoria v SA [2006] VCAT 742

A solicitor’s prima facie sound argument — that the indemnity principle at the heart of the common law’s costs jurisprudence meant that the Law Institute should not be entitled to its in-house solicitor’s costs of the prosecution — failed. The reason: because the LIV was engaging in a statutory duty. Continue reading “Costs of prosecutor’s in-house lawyers”

3 years’ holiday for not making ongoing discovery

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)

A solicitor’s right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence. Continue reading “3 years’ holiday for not making ongoing discovery”

Misconduct in acting in face of duty and associate’s interest conflict

Legal Services Commissioner v JAF [2006] VCAT 581 (Cullity, Shattock, Hannebury) Acting for vendor and purchaser; conflict between duty and interest (of solicitor’s associate)

The Full Tribunal were not impressed with this solicitor who acted for the vendor and the purchaser which was a trust of which his wife was a beneficiary, but did the rule they relied on extend to prohibit acting in the face of a conflict between duty and the interest of an associate? Continue reading “Misconduct in acting in face of duty and associate’s interest conflict”

Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”

Justice Gillard gives the Law Institute a bloody belting

SPB v Law Institute of Victoria [2005] VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c)

Solicitors who read the back pages of the RPA News (dubbed the “sports pages”) well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public excoriation of a regulator as in this decision, however. His Honour railed especially about the adverse finding made on the papers without interviewing the former client or having her confirm her allegations by statutory declaration.

Continue reading “Justice Gillard gives the Law Institute a bloody belting”

A duty not to tempt witnesses to breach likely confidentiality obligations?

Update, 22 December 2009: I came across this article recently: ‘Using Information: Witnesses Under Obligations of Confidence’ (2002) 22(11) Proctor 16.

Original post:

AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; Bernard Murphy “Witnesses and Confidential Information” Litigation Lawyers’ Section Newsletter, March 2006

Melbourne class action litigator Bernard Murphy was found by the NSW Supreme Court to have engaged in the tort of inducing breach of contract by acting with a reckless disregard as to whether asking questions of a “smoking gun” ex-employee witness was likely to involve a breach of the witness’s confidentiality obligations to GIO. [Update, Jan 2007: compare this case.]
Continue reading “A duty not to tempt witnesses to breach likely confidentiality obligations?”

Colourful barrister runs rings around the Bar’s prosecutor, for a while anyway

Update, August 2006: the end of the saga is to reported at this post. 

Original post: In Victorian Bar v DAP (Nos. 1 to 4) (Bowman, Southall QC, Harper) [2006] VCAT 294, the Bar got itself into a tangle in the prosecution of a barrister for what sounds like the relatively minor offence of taking monies on account of fees in advance without holding a trust account. The complainant refused to give evidence and VCAT refused to arrest him. But it is not only an entertaining series of decisions: Judge Bowman took a firm line in relation to prosecutorial fairness.

Continue reading “Colourful barrister runs rings around the Bar’s prosecutor, for a while anyway”

A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution

Law Institute v KTBH [2006] VCAT 350 (Senior Member Howell)

There were separate disciplinary and negligence proceedings against the solicitor over the same facts. At the end of the disciplinary hearing, and on the basis of the prosecutrix’s submissions, Mr Howell decided to determine the negligence case and get the whole thing over and done with. He found there had been a delay by the solicitor in getting a woman compensation. Though VCAT was not empowered to order interest on the woman’s claim, he gave her Hungerfords damages, that is, damages in the nature of interest, and calculated the damages by reference to the penalty interest rate. This note is critical of that decision.

Continue reading “A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution”

The Law Institute exercised jurisdiction it didn’t have on receiving a pecuniary loss dispute resolution request from a bankrupt

Said Georges’ Case [2006] VCAT 414

Upon bankruptcy certain causes of action vest in the trustee in bankruptcy, and others do not: see ss. 58(1) and 116(2) Bankruptcy Act, 1966. This dispute vested in the trustee upon the client’s bankruptcy, but the trustee wrote the client a letter consenting to “the bankrupt’s pursuit of the dispute with [the solicitor] by lodging the appropriate applications to the Legal Profession Tribunal”. Mr Butcher found that though the trustee probably had the power to engage the bankrupt client to pursue the claim for the benefit of the estate, but “the letter does not indicate to me that such was the intention of the trustee”, and dismissed the dispute.

Evidently, this was a matter overlooked by the Law Institute which blithely exercised jurisdiction it did not have, to the detriment not only of the taxpayer’s pocket but of the solicitor’s.

Bernard Sheehy was for the solicitor, and Alan Hebb for the Tribunal.