How to interview a witness who might be a defendant

In Victoria v Villan [2022] VSCA 106, the Court of Appeal gave guidance to practitioners in relation to the treatment of non-party witnesses in civil cases where the criminal prosecution of the witness is on the cards, after self-incrimination issues derailed a jury trial in a historical sexual abuse case, occasioning its stay.

Given that the statutory provision in question — s 128 of the Evidence Act 2008 — extends beyond the privilege against self-incrimination to the privilege against penalties, the guidance must also apply where a proposed witness in civil proceedings who is a professional might expose themselves to a penalty in the form of disciplinary sanction by giving evidence in civil proceedings. An employee solicitor or the director of a defendant law practice in a negligence suit, should be advised by the defendant’s (insurer’s) lawyers of the possibility of disciplinary sanction, and of the possibility that evidence called by the defendant might affect any subsequent disciplinary investigation and prosecution, since the Victorian Legal Services Commissioner and VCAT alike have power to issue fines for proven misconduct, an archetypal penalty.

Indeed, in Oldham v Law Institute of Victoria [2012] VCAT 571 (a disciplinary prosecution despite the counter-intuitive title of the proceeding), Judge Bowman recorded that Terry Forrest J had in earlier related civil proceedings ‘completely understandably and very fairly’ refused to allow the cross-examination of the practitioner who was personally a respondent to a non-party costs order, on the basis that he should not prejudice himself in relation to any future disciplinary investigation into the same conduct.  (Such an investigation might readily have been appreciated to have been on the cards, because his Honour was the person who initiated it by referring the practitioner to the Victorian Legal Services Commissioner.)

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Disciplinary prosecutions arising out of criminal convictions and civil findings against professionals

In disciplinary proceedings, prosecutors often wrongly assume that findings in prior decisions (usually criminal convictions) are both admissible and un-challengeable by the respondent.  Neither is true, however, at least where what is relied on by the prosecutor in the disciplinary case is something more than the fact of the conviction (e.g. the fact of the conduct which gave rise to it). Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 is much-cited, but has flown under the radar in Victoria and I must confess that I was ignorant of it until recently. It says as a matter of ratio decidendi that a professional in a disciplinary case is entitled to call evidence to contradict findings made in a previous criminal prosecution, and to do so is not of itself an abuse of process.  The same must be true, a fortiori, I would suggest, in relation to findings in a civil case.

Section 91 of the Evidence Act 2008 is often forgotten, too.  It says that evidence of a Court’s or tribunal’s decision or a finding of fact is not admissible to prove the existence of a fact that was in issue in that proceeding. Not only are reasons usually hearsay and opinion evidence, but the tender of reasons to prove the truth of what they record is specifically prohibited, except to the extent necessary to establish a res judicata or issue estoppel.  Where the common law applies, an even stricter result obtains by virtue of the rule in Hollington v F Hawthorn & Co Ltd [1943] KB 587.

I’m interested to know of how other jurisdictions deal with these questions, which also crop up in personal costs order cases, also discussed below.

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The ‘suck my dick’ case

Summary A drunken male barrister approached a seated female assistant clerk whom he did not know at a dinner at a barristers’ clerks conference, lightly pushed her head downwards towards the table and away from his person and said to her in her colleagues’ presence ‘suck my dick’, moments after greeting another barrister on the clerk’s floor, his friend, at the table by sticking his middle finger out, grabbing the other barrister’s head and pulling it to and from his crotch. Continue reading “The ‘suck my dick’ case”

2021: Not Such a Good Year (Deaths)

People mainly governed by twits By February 2021 (when Australia’s vaccine roll-out commenced), half a million Americans had died from COVID.  That was already more than had died in the world wars and the Vietnam War combined.  In one week in September, more Floridians died from COVID than all the Australian deaths from COVID to that point.   By year’s end, more than 800,000 Americans (‘It’s going to disappear. One day, it’s like a miracle, it will disappear.‘) were officially dead of COVID (more died in 2021 than in 2020), along with 600,000 Brazilians (‘We’re all going to die one day, everyone here will die. There’s no point running away from it, running away from reality. You need to stop being a country of queers‘), almost half a million Indians (‘Mahabharata war was won in 18 days. The war that the whole country is now fighting will take 21‘) and about 300,000* Russians, and the same number of Mexicans (‘You know when I’m going to put on a mask? When there is no corruption. Then I’ll put on a mask and I’ll stop talking.’)

But it’s not clear that any more Australians died in 2021 than usual; certainly, there were 8,000 fewer deaths in Australia the year before than in 2019. This website suggests that there were 3,520 fewer deaths than usual in Australia for the period April 2020 to October 2021. The suicide rate by people in Australia was the lowest in 2020 since 2016, contrary to what some would have you believe, and I doubt that it was higher than usual in 2021.

*Of course the above are just the official statistics. Instead of reporting the official figures and from time to time observing that they are likely to be grossly inaccurate in some places, it would be better to report best estimates of true figures, from time to time explaining the methodology by which extrapolations were made from official figures.  The Economist, for example, estimated that in May 2021 the true number of COVID deaths in India was 2.3 million, compared to the official figures of 200,000. This website has estimates of excess deaths for many countries.  The excess deaths in Russia over a 20 month period were nearly 1.1 million, a far cry from the c. 300,000 official COVID deaths. The true number of COVID deaths in many of the poorest countries is more difficult to estimate because they don’t count deaths properly.

A great piece at Crikey compares Australia’s and Texas’s experiences, two similar polities in terms of their economies, health systems, population numbers (though not attitudes to public health) and population distribution, but with very different leaders.  Nearly a month ago, it was estimated that about 100,000 Texans had died from COVID (more than the official statistics).   A vigorous right wing anti-mask campaign, and the failure to this day of 45% of the state’s population to receive even a first dose of the widely available vaccines, correlates with 80,000 more Texans being dead from COVID at Christmas time than in Australia.  Or, to put it another way, had we made like Texas, the increased number of Australians who would have died by the end of the year from COVID may have exceeded the number of Australians who died in either of the two world wars.

I would also observe that there have been 4.5 million confirmed COVID cases in Texas.  If true cases are 33% higher than confirmed cases, as Crikey suggests in relation to deaths, then there would have been 6 million cases.  In November, the Washington Post reported that half of COVID sufferers — including those with no symptoms — may experience symptoms of long COVID for 6 months or more.  That’s potentially nearly 3 million people fatigued or brain fogged or suffering anxiety for 6 months, and the risk of long COVID as a result of breakthrough infections in the vaccinated is much lower than  in infections of the unvaccinated, with the severity of the condition increasing in correlation with the severity of the infection.  The more telling statistic might be in the disparity between the small incidence of long COVID in Australia’s 400,000 odd cases, compared to the millions of long COVID cases which might be largely hidden from view in Texas.  Researchers reckon there are 100 million people suffering long covid worldwide, with women, the obese, and those who were intubated at greatest risk.

Wars According to Wikipedia, the major wars by 2021 fatalities were Afghanistan (44,000 violent battle deaths between identified groups, to the nearest 1,000), Yemen (22,000), Ethiopia (19,000), the Mexican Drug War (8,000), Myanmar (10,000), the African struggle against Boko Haram (8,000), Syria (6,000), Islamist insurgency in North Africa (4,000), Somalia (3,000), and Iraq (2,000).  It is very sad that hundreds of thousands of people met truly ghastly violent deaths far from their loved ones, many no doubt agonisingly painful and without much or any medical assistance.

A man who knew a lot about war and who devoted his life to the UN since before its inception died aged 101: Brian Urquhart.  He was the architect and long overseer of its peacekeeping operations. British born, he remained in the US after his retirement.

Science The guy who saved many from hunger by hybridising effete inbred commercial rice strains with wild rice, Yuan Longping, died.  He shared my love of padi, as rice in the field is known in Indonesian / Malay (hence paddy fields).

Old Englishmen Philip Schleswig-Holstein-Sonderburg-Glücksburg died, after a couple of renamings, on the precipice of a ton. The Corfu-born Greek, Danish, German, Russian and British chap married his cousin, also a great-great-grandchild of Queen Victoria, becoming Prince Phillip, Duke of Edinburgh.  He quipped ‘It’s a pleasure to be in a country that isn’t ruled by its people’ on a visit to Paraguay’s dictatorship in 1963, and made many more jokes which were described as gaffes.  But he was at the wheelhouse with his wife through a period of unprecedented change in the 1,000 year old institution of the British monarchy, and was given a generally positive portrayal in Netflix’s The Crown, season four of which entertained many in 2021.  That show suggested that the Prince was enthusiastically instrumental in the creation of Royal Family, a 1969 documentary film about a year in the life of the Queen, an early form of reality tv.  It went to air in 1969 but the Queen later banned it. It was in 2021 that it was leaked to Youtube, where it may still be viewed.

But the Prince’s greatest contribution to his wife’s Australian subjects was entirely involuntary, and resulted from his last renaming when Tony Abbott made a captain’s call to recommend to the Queen that she rename her husband Sir Prince Phillip, Sir Duke of Edinburgh, as part of the Australia Day Honours in 2015.  Andrew Bolt, an acolyte of both the Queen and the Prime Minister, could not find words to describe the stupidity of the act.  A few weeks later, Abbott bit into and masticated upon a raw unpeeled onion while touring an onion farm, and a few weeks after that, Malcolm Turnbull deposed him as prime minister. Then, of course, he lost his seat to a woman lawyer who believed in the climate emergency, and he went to work for the government of his homeland, where he would have found the Tories (and Prince Charles) to be distinctly left-wing compared with his world view and the policies of his government.  They would not have understood the climate wars, for example, since Britain’s climate policy is largely bipartisan.

Then there was dear old Captain Sir Thomas Moore (wow, what a name), who did make a century. At 99 he decided to walk, aided by his walking frame, 100 lengths of his garden with the aim of raising £1,000 for the National Health Service during the COVID pandemic, and ended up raising £33 million.

Lord Vestey was the great grandson of Dame Nellie Melba, claimed to be the only trained butcher to sit in the House of Lords, was great mates with Prince Charles, and owned great swathes of Western Australia and the NT where he ran cattle.  He features in Paul Kelly and Kev Carmody’s song ‘From Little Things, Big Things Grow’ (‘British Lord Vestey and Vincent Lingiari/Were opposite men on opposite sides’).

And I cannot but mention the Oxford don whose thing was Byzantium, being what they call the second Roman Empire, heaquartered in Constantinople.  I must mention Cyril Mango mainly because I think he had one of the best names I’ve heard.  Rather wonderfully, he married Mabel and made her into Mrs Mabel Mango.

Lawyers F. Lee Bailey, one of O.J. Simpon’s lawyers, died, struck-off.  He asked the policeman he accused of planting the bloodied glove whether he had used the word ‘nigger’ in the last decade. The response was inconsistent with the recordings Bailey produced. Simpson was acquitted of murder and Fuhrman was convicted of perjury. A self-promoter, he got between trials in a Lear jet and appeared in a Smirnoff ad.

John Rizzo was the C.I.A. lawyer who shamefully sanctioned the torture technique known as waterboarding and led the leader of the free world, incredibly, to torture people held without judicial authority and without trial in black sites around the world because the program was too hot for the Defence Department to house. He died a month before the 20th anniversary of 9/11, which spawned many a documentary, including this not bad Netflix number which dealt with Rizzo’s role well.

(One of the 20 blindfolded, shackled, orange jumpsuited, kneeling caged humans in a famous image from day 1 of Gitmo died in Port Sudan.  On one version of events, Ibrahim Idris‘s torture by George W. Bush’s agents fried his mind.  He spent 11 years in Guantanamo Bay without ever being charged or tried, and was allowed to go home to his mother in Sudan only because he was so impaired by morbid obesity and schizophrenia that it could not credibly be claimed that he was a threat to anyone so as to justify his ongoing degradation in Guantanamo Bay.)

Sarah Waddington successfully argued Roe v Wade 410 U.S. 113 (1973) in the Supreme Court, twice, for her client Norma McCorvey, aka Jane Roe, who became a lesbian and a Christian.  Fresh out of law school, unable to get hired by law firms because she was a woman, Waddington was 27.  According to McCorvey’s deathbed confession, she sold out to the anti-abortion lobby and pretended to have been become an anti-abortionist, for money.  But the anti-abortionists claim her conversion was genuine and she  was just trying to improve her legacy with her false ‘confession’.

Colin Lovitt QC was perhaps best known for successfully defending Greg Domaszewicz in his trial for the Moe murder of baby Jaidyn Leskie.  I did Andrew Palmer’s subject Proof as part of my LLM and we charted the inferences we claimed flowed from the prosecution’s brief of evidence in that trial. Here is Mr Lovitt’s contribution to Foley’s List oral history project.  Other characters who passed in 2021 include Michael Ruddle, Dan Christie, and Tom Bruce.

Master Bruce, né Peter Bruchsteiner, was a Milanese of Hungarian ancestry whose parents died in Auschwitz.  He arrived in Melbourne to live with relatives without a word of English.  In 1973 he was appointed Taxing Master and in his third of a century in the job, conducted thousands of taxations a year, back when the primary business of what is now the Costs Court was actually hearing taxations.  Ormiston J described him as ‘one of the most experienced taxing officers in the common law world’.  He retired in 2006, the third longest serving judicial officer at the time, was a patron of the arts, and had a long association with the government of the University of Melbourne. 2021 was my first year as a member of the Victorian Bar News Committee, and it was my privilege to commission Justice McMillan’s obituary, which may be found at p. 88 of the 50th anniversary edition of Bar News.  One of its founders, Peter Heerey, a distinguished Federal Court judge, also died in 2021.

Dick Stanley QC was the doyen of Melbourne personal injury barristers. Frank Walsh and Frank Saccardo were County Court judges.  Chester Porter QC was a legend of the Sydney Bar.  I read his he Conviction of the Innocent; How the Law Let Us Down early in my career as a barrister. Another Sydneysider, Hal Wooten sounds like a good sort.

Jamaicans Bunny Wailer, the reggae frontman of The Wailers, died. The first black British policewoman (1968) was Sislin Allen.  She was Jamaican, and therefore Carribean like a lot of the established black people of London, recruited from the educated middle classes for migration from within the Commonwealth to restore the post-war economy, known as the Windrush generation after the name of the first ship which arrived in 1948.

The first black Secretary of State and the first black Chairman of the Joint Chiefs of Staff was Colin Powell who succumbed to COVID.  He too was Jamaican by ancestry, the son of immigrants, and grew up in the Bronx. He was a soldier by occupation, injured in Vietnam. In his autobiography, he said of his experiences in Vietnam that ‘Many of my generation of Vietnam-era officers vowed that when our turn came to call the shots, we would not quietly acquiesce in halfhearted warfare for half-baked reasons that the American people could not understand.’  Having served three Republican administrations, often moderating the extreme hardline neocon positions of Dick Cheney and Donald Rumsfeld (see below), Powell endorsed Barack Obama’s and then Joe Biden’s presidential campaigns and was an outspoken voice of reason in the Trump era, privately describing him in writing as a national disgrace, an international pariah, and a racist, and publicly describing him as a liar.  When he retired, he was the most popular public figure in America which explains why he reportedly received a US$6 million advance for his well-received memoirs.  The Powell doctrine seems to have survived real-world testing a lot better than the Rumsfeld doctrine, which, like the Federal Government’s climate change policy, relied heavily on technologies which were more hyped than tested, and emphasised the minimum possible numbers of ‘nimble’ boots on the ground.

But it was Powell who put the case to the United Nations‘s General Assembly for the invasion of Iraq in 2003, a 75 minute speech in which he asserted as fact that Saddam had chemical, biological and perhaps even nuclear weapons.  He told Larry King he regretted having made the speech.  He had guided George W. Bush towards focusing on Afghanistan in the immediate aftermath of 9/11, and then given stern warnings about the risks of invading Iraq, warning that an invasion would destablise the Middle East and leave America with a massive reconstruction burden, but did as he was told by the President when making the speech.

Australians Andrew Peacock, once of Kooyong, died at home in Texas.  John Elliott, too, of Elders IXL fame (it owned Carlton United Breweries which made Carlton Draught), a federal president of the Liberal Party and of the Carlton Football Club, a man who claimed to have run out of money by losing litigation on which he spent $11 million.  He aspired to be prime minister.

Fellow Carlton fan, Sir James Gobbo died. A Roman Catholic of Italian extraction, like Tom Bruce, he spoke not a word of English when he arrived from Italy aged 7, despite having been born in Carlton. Brother of Nicola’s late father, he was given a state funeral.  Sir James said his proudest achievement was his family. They did not maintain a dignified silence about Nicola.  A judge of the Supreme Court of Victoria from 1978 to 1994, he was Governor from 1997-2000 and later Commissioner for Italy for the Victorian Government (who knew there was such a job?).

Bert Newton, Brian Henderson, Ernie Sigley and Peter Cundall all left Australian screens in 2021.  Mr Cundall was born to a very poor family in Manchester and left school aged 12.  His gardening talkback spot on radio was one of the first of its kind in the world.  He continued broadcasting into his 90s.  He was a committed campaigner against the destruction of Tasmanian wilderness.

Michael Gudinski of Toorak died and was buried at the St Kilda cemetry, having brought Frank Sinatra, Madonna, Bruce Springsteen, and the Rolling Stones to Australia, and promoted and championed Kylie Minoque whom he signed as a teen, Split Enz, Jimmy Barnes, Archie Roach and Paul Kelly. What was reported as a heart attack looked more like death by mixed drug use to the coroner.  He founded the largest independent Australian music and entertainment outfit and left assets worth $46 million.  Unlike Phil Spector who also died in 2021, in prison, he managed to avoid murdering anyone.

Writing The great University of Melbourne historian Stuart McIntyre died. Christopher Little was 6’4″ and had huge feathery eyebrows.  J.K. Rowling sent him the first three chapters of her first manuscript because she thought his name sounded like a character in a children’s book.  He threw it in the bin, but his secretary had a read, intrigued by its distinctive binding, and insisted he take a look.  He agreed to be her agent, and found a publisher, negotiating canny deals which had something to do with Ms Rowling becoming the first author in history to make a billion dollars from selling their books, one of only five self-made female billionaires, and nearly the 1,000th richest person in the world.  Little’s in-house lawyer started up his own literary agency and Ms Rowling sacked Little and went with his lawyer.

Eric Carle, whose The Very Hungry Caterpillar I could quite recently recite from memory wrote 69 other books illustrated with collages of cut out tissue paper, which together sold 170 million copies in several dozen languages.  The caterpillar turned 50 in 2019.  His love of colour was a reaction to the dullness of life in Germany during the second world war, where he grew up.

Janet Malcolm was a great American writer on the staff of The New Yorker. A Czech-born Jew, her family emigrated to New York just before the second world war. The daughter of a lawyer and a psychiatrist, she wrote two books about litigation, and was herself the subject of a libel trial which dragged on for 10 years.  Iphigemia in Forest Hills is a rare example of highbrow true crime, the anatomy of a murder trial.  The Journalist and the Murderer was the critical study of a journalist’s relationship with his subject, Dr McDonald, who murdered his family and is studied in most undergraduate journalism degrees.

Apparently, Joan Didion was another great journalist and memoirist of New York, who wrote for Vogue and had great parties. There’s a Netflix documentary about her.

Deborah Rhode was a great American legal scholar about whom I was, embarrassingly, ignorant until her death, given that she was America’s most cited legal ethics scholar.  Two obituaries here and here. I promptly purchased In the Interests of Justice; Reforming the Legal Profession which I should have read more of instead of watching Netflix, etc.

(Room 2806, about the fall from grace of Dominique Strauss-Kahn, President of the World Bank and aspirant for the French presidency when he allegedly brutally raped a chamber maid was very good, Bridgerton was fun, it was incredible to know that The Serpent was based on true events, Sophie, A Murder in West Cork was a good true crime show, and Maid was flawed but oddly compelling,  On platforms which don’t conveniently keep a list of what one watched, so far as I can recall, Mare of Easttown and White Lotus were both good.

Most incredible of all were two documentaries which often turn up in lists of the greatest documentaries of all time, Joshua Oppenheimer’s The Look of Silence and The Act of Killingabout the slaughter in Indonesia, Bali included, of half a million to  a million ordinary non-fascists described as ‘communists’, a period in which women described as communists were raped and a million jailed without authority.  The documentaries show how the paramilitary gangs who carried out the killings as the military’s factotums remain an integral part of Indonesian society, and how the thugs who personally murdered thousands of their countrymen, often by garotting them with a piece of wire, waltz around the very towns where the atrocities were committed with complete and utter impunity. You can watch them on Docplay.  Then there was En Therapie, and Le Bureau both French shows on SBS, both excellent.)

Eddie Jaku, the Holocaust survivor who published The Happiest Man on Earth at 100 died within the year. So did 97 year old Lotte Weiss, one of the first Jewish prisoners in Auschwitz who wrote My Two Lives. Both died in NSW.

Geoff Crowther, who was publishing travel guides before Lonely Planet and later wrote many of the first editions of Lonely Planet’s famous guides.  I remember his pictures at the front of the Lonely Planet guides I took on my first big solo trip.

Australian Wendy Brennan (sub nom Emma Darcy) wrote and sold 70 million Mills & Boon romances. She read and analysed 100 of them she bought from a second hand bookshop before she wrote her first.  At the other end of the female writing spectrum, the poet, essayist and memoirist Kate Jennings passed. Zambian-born African adventure writer Wilbur Smith died, selling twice as many books as Ms Darcy.

Film and television David Gulpilil Ridjimiraril Dalaithngu of Yolgnu country in north-eastern Arnhem Land was much mourned as David Dalaithngu for three days after his death and thereafter by his professional name, David Gulpilil.  I doubt any Australian actor has had more movies made about him: including Walkabout to Hollywood, One Red Blood, Another CountryCharlie’s Country, and My Name Is Gulpilil.

The Englishman who made the 7 Up, etc. documentaries (the last was 63 Up), (along with Gorillas in the Mist and a James Bond film), Michael Apted, died in LA.  Helen McCrory, who played the matriarch Polly so well in Peaky Blinders, died at 52. Mikis Theodorakis wrote the score for Zorba the Greek.

The US talk show host Larry King was a victim of COVID. He interviewed maybe 50,000 people.  Here he is with Joe Biden; with Donald and Melania as newlyweds; and with the present Dalai Lama the rather silly questions in which suggest that his claim never to prepare much for interviews may not have been a shtick.

Jean-Claude Carriere died.  He wrote the screenplay for Luis Buñuel’s surrealist The Discreet Charm of the Bourgeoisie, and Belle de Jour, another Buñuel movie about a married prostitute (Catherine Deneuve).

Speaking of which, Larry Flynt, the American publisher of the blue collar porno Hustler and blue movie maker also passed, probably not into the afterlife, as he was an atheist.  He is the subject of The People Against Larry Flynt, and a libel case against him went to the Supreme Court (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)) and established that the First Amendment extends to all self-evidently satirical speech about public figures, even that calculated to inflict ridicule and emotional distress (e.g. the Campari ad he published featuring a televangelist boasting of having had drunken sex with his mother in an outhouse).

Music Alemayehu Eshete was a star of Ethiopian jazz of the kind popularised in the west by the Ethiopiques label. His act of transgression — making a record — when tolerated by the State, sparked a renaissance of indigenous jazz, a wild fusion.

Stephen Sondheim wrote Broadway musicals like Into the Woods, and wrote the lyrics for West Side Story for which Leonard Bernstein wrote the tunes. He died just before the premiere of the just-released Steven Spielberg film version. Sweeney Todd is the story of a barber obsessed with murdering a judge who had wrongfully convicted him and who made pies out of his customers after slitting their throats with a straight razor.

The great white jazz pianist Chick Corea died.  He won the most Grammys of any jazz musician, and had a diverse and prolific career as a composer and jazz performer, playing with Stan Getz, Sarah Vaughan, and on some of Miles Davis’s weirder stuff, like ‘Bitches’ Brew’, as well as ‘In a Silent Way’.  Testament to his versality is this video of him and Keith Jarrett playing Mozart’s double piano concerto, very straight.  Compare ‘The Mozart Sessions‘, with Bobby McFerrin.  Like Mozart, he improvised cadenzas.

Another great white jazz musician to pass was Charlie Watts, best known for his side gig drumming the Rolling Stones. He eschewed the rock and roll lifestyle of his fellow band members for a dapper, eccentric, comparatively quiet one (a 2 year bender being an aberration). He sketched each hotel room he stayed in,  and had a collection of luxury vehicles. Never having learnt to drive, he just switched them on and listened to their engines thrum.

James Levine, sacked from the Met for alleged sexual indiscretions with young male singers, died after a storied career with the New York opera house, and after it settled his case against them arising from his dismissal for US$3.5 million, rather casting doubt on the strength of its case against him.  The court case revealed that his fee per performance was US$27,000.  ‘Live from the Met’ programs made him one of the most recognised classical musicians of his times. He had long associations as conductor with the Munich Philharmonic, the Berlin Philharmonic, the Vienna Philharmonic and the Chicago Symphony Orchestra, and also played the piano well.

Bernard Heitink was a Dutch conductor who played the violin and who led the orchestra of my favourite of those few concert halls I have been to, Amsterdam’s Concertgebouw.  He was famously modest and unassuming.  He recorded the complete symphonies of a dozen composers, sometimes twice.

Architecture The Pompidou Centre blew me away when I went to Paris, even though it is in my recollection essentially a library full of French books, in which I dutifully spent some time reading but not really understanding a French biography of Francis Poulenc since there did not seem to be much else to do (though the internet tells me it also houses a large modern art gallery).  It seemed as exciting to my youthful mind as the Opera House, with its intestines pinned to its exterior, though two buildings could hardly be more different, and I doubt I would have the same response to it now I’m twice the age I then was.  One of its architects, a noted collaborator with the other (the Italian Renzo Piano), passed away.  Richard Rogers also designed London’s Millennium Dome, and Lloyds of London’s headquarters, and the strangest courts I’ve ever seen, in Bordeaux. He was actually a Florentine with an English sounding name because his father was an Anglophile, and he made his home there.

Government F.W. De Klerk shared a Nobel Peace Prize with Nelson Mandela, whom he released from jail, and presided over an orderly transition of power from whites to blacks in a manner as unexpected as Mikhail Gorbachev’s dismantling of the Soviet Union.  He continued on for a couple of years as Mandela’s deputy, but that did not work out too well.

Desmond Tutu was the Archbishop who campaigned for sanctions against the Apartheid regime, preached non-violence, presided over the first great restorative justice project in the Truth and Reconciliation Commission, and caustically criticised white governments and then ANC governments alike.  He too had a Peace Prize. He was an early and powerful voice against homophobia and criticised some of Israel’s policies towards the Palestinians.

(The 2021 Peace Prize went to Maria Ressa and Dmitry Muratov, journalists in the Philippines and Russia respectively, bravely fighting for freedom of speech.  The prominence they gained from the Prize may explain why they did not die in 2021.  These guys are real freedom warriors, whose actions make the ersatz rabble who conducted violent campaigns in the streets of Melbourne in 2021 look absurd.  The prize for literature went to Abdulrazak Gurnah, who fled Zanzibar for London before it combined with Tanganyika to form Tanzania, where he is virtually unknown.)

Kenneth Kaunda was landlocked Zambia’s founding president, a post he relinquished only after 27 years.  He pressed hard for the release of Mandela and was instrumental in anticolonial initiatives in southern Africa.  It was to Lusaka that Mandela flew to meet with exiled ANC leaders, shortly after his arrest.

Chad, which also had a Truth Commission, was in the news, unusually. On the way to Timbuktoo one time, I met this other-worldly German couple who erected their tent on their hotel bed and slept inisde it, and told me they were heading over to Chad, via Gao, a town I’ve wanted to go to ever since, ‘to study indigenous techniques of mango preservation’.  They must have really wanted to find out in person how to dry mangoes the Chadian way, because it has long been one of the least friendly places to visit.

Hissène Habré was a textbook evil dictator who took power in a US-sponsored coup and was propped up by Israel, France and the US to keep Libya at bay.  He was sentenced in Senegal to life imprisonment by the Extraordinary African Chambers set up by the African Union, for crimes against humanity between 1982 and 1990 which included murdering 40,000 of his people, Mediaeval style torture of 200,000, and enslaving women to act as slaves for his soldiers, including 13 year old girls who were constantly gang-raped.  He was ordered to pay US$150 million in compensation to 8,000 victims, but that did not happen.  He himself was an enthusiastic rapist of his soldiers’ slaves and defended the case against him on the basis that one of the slaves was actually a nymphomaniac prostitute and another a crazy whore. One of his lawyers made the following cryptic and swaggering remarks to the media: ‘There has been too much posturing in this case.  But as the great Vladimir Ilyitch Ulyanov Lenin once said, “Only the truth is revolutionary.”‘ There is an incredible long read account of the prosecution here, and a film about it (‘The Dictator Hunter’), which I look forward to reading and watching, and a book (see pic). Rot in Hell, old boy.

Idriss Déby, one of his generals, seized power from Habré in a coup.  He too died in 2021 as he was about to win his sixth election to become one of the world’s longest serving leaders when he was killed on the battlefield, commanding the troops of one of northern Africa’s best armies.  He squandered the oil and uranium wealth of the people of Chad who remain some of the world’s poorest, with a life expectancy of 54, especially on the armed forces.  But his close relationship with France, and his willingness to battle Islamic terrorism in the Sahel endeared him to the international community.

Another long-term north African President to pass in 2021 was Abdelaziz Bouteflika who ruled Algeria for 20 years until he was forced from power in 2019 by peaceful popular uprising.  He probably should not have gone for that fifth term. He was rarely seen after a stroke in 2013 but nevertheless improbably purported to win the 2014 election, and might have counted himself lucky to have got away with it and got out while he could.  He was only briefly married, and had no children. Algeria, like Chad, was another security state I would not want to have been on the wrong side of.

Benigno Acquino’s assassination unleashed a wave of people power that unseated the dictator Fedinand Marcos.  His wife Cory became President, and their son Benigno in turn following her death.  This Benigno died in 2021, also the year in which his nightmarish successor, Rodrigo  Duterte, announced his retirement from politics. The International Criminal Court is investigating Duterte’s involvement in his assassination campaign against drug dealers.  He stood up to China over the South China Sea and stared down the powerful Catholics in his country to pass a law which allowed the poor easy access to contraception.

Michael Somare, Papua New Guinea’s “Father of the Nation” and Joseph Watawi, leader of the Bougainville freedom fighters, both died.

Villains and rogues not yet mentioned Roger Kibbe, a serial killer, was murdered by his cellmate. Bernie Madoff went from prison to (presumably) Hell in 2021. He created the most successful Ponzi scheme ever.  The United States sought restitution of US$150 billion.  He was sentenced to 150 years’ imprisonment.  He was actually a genuine Wall Street fixture who exploited the trust he had and went bad, very bad, ruining many lives, and prompting a couple of his clients to kill themselves. One day he confessed to his son that his money management business was one big lie.  His son promptly reported him to the authorities, and the rest is history.  Pupetta Maresca was a powerful Neapolitan mafiosa.

Boko Haram leader Abubakar Shekau, the knucklehead who kidnapped 300 schoolgirls in 2014, died on the orders of ISIS who figured he was giving violent Islamic insurgency a bad name, which he definitely was.  He blew himself up rather than accepting an offer of surrender. The leader of the Islamic State in the Greater Sahara, Adnan Abu Walid al-Sahrawi, was killed by French forces which have been conducting their own War on Terror in the harsh territory of the Sahel since 2013 which seems to me to be a very useful yet under-reported service to the world. The founder of Peru’s Maoist Shining Path rebel group, Abimael Guzman, died in jail.  It must be observed that 1980 was late in history for a Maoist organisation led by a philosophy professor to declare war on the state and kill 30,000 of his own people.

Rush Limbaugh was a vile shock jock whose weaponisation of out and out lies and virulent, taunting invective was aped to great effect by Donald Trump.  The latter had the former receive the Presidential Medal of Freedom at his last State of the Union address.  Limbaugh was the father of much that went wrong with the media.  Had the fags he smoked got him earlier, it is plausible that there would not have been an attempted coup in the supposed temple of democracy in 2021.

Donald Rumsfeld was twice Secretary of Defence.  The youngest, he was appointed by Gerald Ford, a fellow who became Vice President when scandal overcame the incumbent, and then a few months later President in the same circumstances, replacing Richard Nixon, and so did not really have a platform.  The oldest, he was appointed by George W. Bush, a reformed alcoholic and born again Christian whose platforms were ‘My Dad is George HW Bush’ and ‘Saddam tried to assassinate HW and that ain’t gonna go unpunished,’ who hung out a lot with diamond geezers like Rush Limbaugh and Billy Graham.

Rumsfeld was Vice-President Dick Cheney’s selection for Secretary of Defence.  If the film Vice (which I reckon I watched in 2021) is accurate , Cheney was the most powerful Vice-President of all time, having said he would accept Bush Jnr’s invitation to be his Presidential running mate on condition that he would be in charge of foreign policy and defence, and a lot more besides, and Cheney and Rumsfeld effectively ran the administration, with George W a kind of folksy mascot. Cheney had been George HW Bush’s Secretary of Defence during the 1991 Gulf War, when a US-led coalition came to the defence of Kuwait which Saddam Hussein had very stupidly invaded, and then invaded Iraq, slaughtering its soldiers as they retreated by bombing them from the air, before withdrawing, short of Baghdad. Many attempts were made to assassinate Saddam during that brief war.  George W believed that Saddam had sent a kill squad to Kuwait to assassinate George HW in 1993 on his triumphal visit, and a Kuwaiti court did so find.  The US rained some cruise missiles on Iraq in retaliation.  Then in 1996, the CIA tried to pull off a coup against Saddam. It didn’t work.

So, when on 11 September 2001, Secretary of Defence Rumsfeld was watching the twin towers burn on tv in the Pentagon and a third plane crashed into the building he was sitting in, he and the President were not dispassionate about this attack by 15 middle eastern types (15 Saudi Arabians and 4 others whose number included no Iraqis and no Afghans technically, but you get the drift) commanded by a prominent Saudi.  Osama bin Laden had been hanging out in Afghanistan which tolerated Al Qaeda, admittedly.  Rumsfeld immediately started talking about cleaning up Iraq in the retaliation, and two years after the attacks, per a Washington Post survey, 69% of Americans incorrectly believed Saddam Hussein was personally involved and 82% incorrectly believed Saddam provided assistance to bin Laden.  So Australia and the US and others invaded Iraq at Rumsfeld’s urging.

The legacy of the decisions made by Bush, Cheney and Rumsfeld became apparent in 2021 not only because obituarists fell to consider it, but also because the 20th anniversary of 9/11 prompted many re-analyses; the Taliban won the war Rumsfeld commenced; and the temporary depravity of Australia’s military in the post-9/11 wars was raked over in the ABC’s defence of Victoria Cross winner Ben Roberts-Smith’s defamation case.

The wars in Iraq and Afghanistan morphed into the War on Terror which an American University has estimated cost US$8 trillion in relatively direct costs incurred and to be incurred, as well as massive interest costs on the money borrowed to pay for them, and massive indirect costs.  Nearly a million people died as a result of direct war violence.  Thirty-eight million people were displaced.  And the spectacular failure of the whole enterprise, and its costs, contributed to dissatisfaction with government business as usual which allowed Donald Trump to claim the Presidency on a platform of withdrawing troops and stepping down as the world’s policeman.

Geoffrey Edelsten died, having pioneered the 24 hour super-clinic, and saved the Sydney Swans, introducing dancing girls into AFL in the process, echoes of whom may be found today at Big Bash cricket.  He was deregistered as a doctor and applied for re-registration unsuccessfully, having obtained a doctor of philosophy (and a law degree) and gone back to calling himself Dr Edelsten.  He hired hitman Christopher Dale Flannery to assault a former patient, and went to jail.  He saved the Sydney Swans and married buxom blondes, in one case 47 years his junior. There was no one the tabloids like to deride more. He was a most unusual fellow, and once attended the Melbourne Cup dressed in a yellow suit, a yellow shirt and a yellow tie, a crime of which he was never convicted.

Truth tellers Mohib Ullah was a prominent spokesperson for the Rohingya, assassinated in the refugee camps of Cox’s Bazaar in Bangladesh, poor man. Ole Anthony was a Norwegian born atheist who suddenly became a rather odd ascetic hunter of corrupt televangelists, but was accused of turning his group of co-crusaders into a cult. Ches Baragwanath was a very good Auditor General.  Steve Bracks reckons part of the reason he beat Jeff Kennett was his promise to restore the powers of that office which Kennett had sought to ‘outsource’.  Crown was much in the news in 2021.  Baragwanath  was ticking it and the government off in 1996.

Riordan J provides pithy summary of some of the more difficult costs principles

Riordan J delights me with his helpful summaries of the law in many of his judgments.  Here is his latest, in relation to costs, particularly in multi-party cases of mixed success and success only as to nominal damages, and contractual promises to indemnify against costs, from Saafin Constructions Pty Ltd v MAG Financial and Investment Ventures Pty Ltd [2021] VSC 702 at [27] et seq:  Continue reading “Riordan J provides pithy summary of some of the more difficult costs principles”

Litigant’s solicitor tells Supreme Court his client may not have capacity; Court refers a question to VCAT

In Sangen v Sangen [2021] VSC 590, the executor of his late mother’s will sold her house, but refused to settle.  His brother, the co-beneficiary, sued him.  The executor’s solicitor filed an affidavit attesting to doubt about his client’s capacity, and remained on the record.  The executor filed no medical evidence.  In yet another contemporary reminder of the breadth and vigour of the Court’s inherent jurisdiction to regulate its own procedure, Moore J recognised that he had the Court’s inherent power to order the executor to be medically examined to report on his capacity.  His Honour appointed counsel to appear as amicus curiae, instructed by the executor’s solicitor.  The executor represented himself, from a public phone box.

The litigant vigorously opposed the course which Moore J settled upon, a referral under s. 179 Guardianship and Administration Act 2019.  His Honour relied on both the executor’s solicitor’s affidavit, the submissions of amicus curiae, and his own analysis of the executor’s communications with the Court, including a hand-written letter explaining his objections to settling the sale of his late mother’s house.  His Honour noted that a litigant is entitled to be heard before an order is made under s. 179, and said: Continue reading “Litigant’s solicitor tells Supreme Court his client may not have capacity; Court refers a question to VCAT”

More on hire car costs as damages for loss of the use of a chattel in motor vehicle property damage cases

Kinkhead v Rositani [2021] VMC 009 is a case about crash and bash litigation, a field of endeavour for lawyers which is fertile as a generator of professional misconduct prosecutions. That is because the Victorian Legal Services Commissioner has a fascination with the lawyers who act for plaintiffs who elect to sue the other driver in the courts rather than claim on their insurance. And it is because the big insurers are merciless in their pursuit of the plaintiff lawyers whom they loathe for using the law to interfere with their preferred way of dealing with things, and because they are canny in their lobbying of regulators. RACV will not be amused by this very civilised judgment by Her Honour Meghan Hoare.

Continue reading “More on hire car costs as damages for loss of the use of a chattel in motor vehicle property damage cases”

On the interpretation of ‘exceptional circumstances’ provisions re costs

Di Lorenzo v The Magistrates’ Court of Victoria [2021] VSC 475 was a case in which the Supreme Court spent 2 hearing days on a judicial review of a costs order worth $5,000.  One paragraph of it piqued my interest, about the interpretation of provisions which say there should be no order for costs of the proceeding, absent special or extraordinary circumstances.  Horrible members of that species of provisions are to be found inside s. 303 of the Legal Profession Uniform Law.

Continue reading “On the interpretation of ‘exceptional circumstances’ provisions re costs”

How taxation is obtained out of time under the LPUL in NSW

In the last post, Justice Quigley extended time in which to seek taxation under the Legal Profession Uniform Law (Vic) in unusual circumstances, by consent.  Curiously, a funny little case from NSW provides an echo: Stoltz v Peter Skidmore of Phoenix Legal Consulting Pty Limited [2021] NSWSC 1063 (funny choice of defendant, I must say, but Ms Stolz was unrepresented). Continue reading “How taxation is obtained out of time under the LPUL in NSW”

Supreme Court sets aside default judgment in Magistrates’ Court and refers the fees to taxation instead of remitting suit for fees

Davey v Costanzo Lawyers Ltd [2021] VSC 449 is episode # c. 898 in my series  about suits for fees, ‘Many a Slip Twixt Cup and Lip’.

A family law firm whose website modestly explains that they are the ‘best family lawyers’ sued its former client for professional costs and barristers’ fees for work done in 2018.  They got default judgment for about $40,000 in June 2019, but they forgot to plead that they did the work set out in the bill, that being left to be inferred from the fact that they gave a bill.

In July 2019, a judicial registrar refused an application to set the default judgment aside.  A Magistrate at Heidelberg, reviewing that decision, came to the same conclusion in August 2019.  Then the plaintiff hired counsel and applied again to the same Magistrate to set aside the judgment, and she said no, again, in February 2020.

The lawyers had thrice claimed successfully that there was no merit at all in the client’s defence.  But the client got a barrister, sought judicial review in the Supreme Court and jumped the arguable defence hurdle on the fourth attempt, clearing House v R in the same leap though it was strictly unnecessary to do so, and won on the basis that the complaint had been so badly pleaded that it did not make out a cause of action in debt, so that the default judgment was irregular and should have been set aside ex debito justitiae.  Then she got costs.

The decision is also of interest in relation to the circumstances in which a second application to set aside a default judgment might succeed.  Quigley J observed in dicta:

’36 The new or additional material argued before her Honour is set out above at [16]. Her Honour was sceptical that the matters identified were new or different. However, insofar as it is necessary to make any observation in this regard, it is apparent that a more cogent formulation of the basis of the potential defence(s) [was] articulated in this second application before her Honour. In my view, this may be sufficient to provide a change in circumstances from the situation which pertained before the Court on the first occasion.’

In other words, if you’re represented competently the second time and you self-represented the first time, that might be enough. Continue reading “Supreme Court sets aside default judgment in Magistrates’ Court and refers the fees to taxation instead of remitting suit for fees”

Taxation of costs of litigious matters where there is no valid costs agreement at all or where the costs agreement is void

In this post, I look at the law governing taxations of costs between lawyers and their clients, charged in litigation.  It used to be that where the costs agreement was void, or it was disregarded for the purposes of the taxation because of material costs disclosure defaults, or there was no costs agreement which covered the relevant work, the taxation would proceed according to the relevant court scale.

In two cases (Shi and Re Jabe), the Court has found that scale is the appropriate basis for taxing costs in this situation.  In others, where the Court considers that the client would not have done anything much differently had they obtained proper costs disclosure, and the costs charged were much the same as scale, or in accordance with what was being charged in a well-worked out market for a common kind of work, the Court has at an interlocutory stage told the lawyers that they can draw the bill of costs in taxable form by reference to the hourly rates in the void costs agreement, but that at the end of the day, the enquiry is what is fair and reasonable according to the criteria in s. 172 of the Legal Profession Uniform Law, noting also the considerations which may be taken into account in s. 200.

In other words, though the bill need not necessarily be drawn on scale anymore, nor is there the comfort that the lawyers will get at least scale.  They might get significantly less than scale.  Indeed, though I don’t know of it having been argued yet, they might get nothing, because, had the client been given proper disclosure they would never have embarked on the expensive exercise from which they gained no advantage.

Another thought: if the costs agreement is void, then though the hourly rate might still be able to be used for the purposes of the bill of costs in taxable form, the pernicious rounding up provisions in many costs agreements will be unavailable.  A bill where many one, two or three minute attendances are charged at one ‘unit’ of 6 minutes or part thereof, would only be able to claim a fraction of the fees which were actually billed.  Continue reading “Taxation of costs of litigious matters where there is no valid costs agreement at all or where the costs agreement is void”

Legal discipline and the model paedophile

If there were such a thing as a model paedophile, the respondent in Legal Services Commissioner v Ferguson [2021] QCAT 205, a gentleman in his early 60s, might be it.  He had psychiatric ill health and other life difficulties and turned to booze and porn, a small fraction of which was child pornography.  (No one suggested that his collection of presumably legal non-child porn was relevant in any way to his fitness to practice.) Continue reading “Legal discipline and the model paedophile”

Supreme Court flexes inherent jurisdiction of its own motion to require both parties’ lawyers’ costs to be taxed by the Costs Court on Scale

Pity the dozy lawyer who wanders innocently into Justice Cate McMillan’s court, bringing attitudes from days of yore about fees charged out of a great big fund.  Re Jabe; Kennedy v Schwarz [2021] VSC 106 should in my opinion be reported in the Victorian Reports as indicative of the breadth of and resilience to statutory incursion of the Court’s inherent jurisdiction.  The Court of its own motion sent both parties’ lawyers’ costs off to the Costs Court to be taxed on Scale, at the conclusion of a case, having found, on an inquiry initiated by Justice McMillan, disclosure defaults and void costs agreements governed by the Legal Profession Uniform Law, and legal costs that were not fair, reasonable and proportionate as required by that Law and the Civil Procedure Act 2010. Continue reading “Supreme Court flexes inherent jurisdiction of its own motion to require both parties’ lawyers’ costs to be taxed by the Costs Court on Scale”

Solicitor who went off the record for party restrained from giving assistance to former client

Lee v MK Trading Co Australia Pty Ltd [2021] VSC 343 is a decision of Sloss J which takes the law relating to the restraint of lawyers for acting for a party in litigation a step further in that she restrained a solicitor who had already gone off the record from providing legal assistance behind the scenes.  The decision  was made in the Court’s exercise of its inherent jurisdiction to restrain lawyers where ‘the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and appearance of justice’ articulated in Grimwade v Meagher [1995] 1 VR 446, 452. Continue reading “Solicitor who went off the record for party restrained from giving assistance to former client”

Party-party, solicitor-client, indemnity, special indemnity, scale costs: where are we at?

It seems that Mukhtar AsJ found Bougainville Copper Ltd v RTG Mining Inc [2021] VSC 231 fascinating and rewarding.  It was an application for preliminary discovery to find out whether the applicant had a cause of action for damages for bribery and corruption by the respondent.  The respondent had a ‘resounding victory’; the applicant got no discovery at all, unable to establish the threshold suspicion to warrant such an order.

His Honour dismissed the respondent’s application for indemnity costs nevertheless in reasons published as [2021] VSC 348.  The indemnity costs application was based in part on allegedly unfounded allegations of wrongdoing insinuated by the applicant.  But it is one thing to make unfounded allegations in a case proper and another to insinuate them for the purposes of establishing whether there is such a case in a preliminary discovery application which is inherently fishing.

It is a beautifully written set of reasons, but I draw your attention to the costs judgment principally because it sets out crisply in one place the differences between the old party party costs and the new standard basis costs, and the old solicitor-client and indemnity costs and the new indemnity costs.  If you are after authority that the new standard basis is akin to the old solicitor-client basis, this is it (though the theory will not necessarily be reflected in Costs Court practice).

And the judgment re-iterates that which is much mis-understood, namely that when you get common garden variety indemnity costs, they are still calculated by reference to Scale, not by reference to what the winner was actually billed.  It is a while since this little newsletter has made that point.

One other mis-understood bit of the law of costs, to complete the picture, is the difference between taxation as between solicitor and own client and taxation as between parties on the solicitor-client basis, two different but dangerously similarly named enquiries.   The new taxonomy of costs as between party and party should reduce confusion since there will be no taxations on the solicitor-client basis as between parties.  But it is as well to remember that even where costs have been taxed as between party and party on Scale, and the winner’s solicitor was charging the winner on the same Scale, the results of the two enquiries will not necessarily be the same.  Indeed, the same may be said, even where the costs have been taxed as between party and party on the indemnity basis.  Because as between party and party, the question is what is reasonable as between the parties, whereas as between solicitor and own client, the question is what is reasonable between the solicitor and the solicitor’s own client, a test which is generally more generous to the solicitor.

The bits of Mukhtar AsJ’s reasons which I think will be of general interest to those who do not already have this stuff front of mind are as follows:

Continue reading “Party-party, solicitor-client, indemnity, special indemnity, scale costs: where are we at?”

Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)

The legendary foundation author of Quick on Costs, Roger Quick, has asked me to put this old workmanlike paper on my blog so that he can cite it and link to it in the second edition of that monumental text which he is kindly working on for all our benefits.

What follows does not deal with any developments in the law since 2010, or indeed anything I have learnt since 2010, when I delivered the paper, and so it is out of date, but it might still be of use in some jurisdictions which have not adopted the Legal Profession Uniform Law or by analogy in some cases which are governed by that law.  Sorry about the formatting, which is the product of copying and pasting a Word document into WordPress.

1. Summary

This paper does not deal with contingent, or no-win no-fee retainers.  In relation to all other matters, the take-home points are these: Continue reading “Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)”

2019: Not Such a Good Year (Environment, Part II)

The endangered greater glider, nearly a metre long, one of the biggest gliding mammals in the world, lives for 15 years, eats gum leaves, glides for 100 m between, ideally, tall old trees with hollows to bunk down in.

Today is World Environment Day.  It prompted me to tidy up, in a minimal kinda way, and publish this hitherto unfinished and unpublished blog post from the ‘2019, Not Such a Good Year’ series.  Of course, 2020 brought a new perspective on things.  But the environment has kept going to shit, as I will no doubt expand upon in a future post.

After 2.2 million other Australian homes went solar, I eventually got an army of solar panels in 2019, the biggest ever year for solar installations in Australia, and greatly enjoyed harnessing the sun to defeat itself through airconditioning. (Two great long reads about the pernicious cycle of (non-solar powered) airconditioning here and — damn Qatar’s bad — here.)

But other things to bring cheer were mainly predictions, proposals and plans (see this post).

An area bigger than Scotland, more than a Denmark in NSW alone, was burnt, much of it forests, estimated to result in the deaths of billions of birds, mammals and reptiles alone, possibly resulting in several species’ extinctions. Maybe three trillion beetles from just one family, Staphylinidae, were incinerated. Some species of much-loved Christmas beetles may have been extinguished. Some shocking images of the detritus of Mallacoota’s once-cacophany of birds were published by The Age, but I managed to get 80 kg of wild bird seed to my mates in Mallacoota by boat to help feed the many birds he says have returned.

It was in fact an extravagantly bad year for the environment, especially Australia’s bits of it. Japan even recommenced whaling (though only in Japanese waters) after Australia single-handedly had them banned only a couple of years ago by the International Court of Justice from the Southern Ocean.

Continue reading “2019: Not Such a Good Year (Environment, Part II)”

Think twice before agreeing to punt an appeal where you and the other side are unpaid in relation to round one

Update, 19 March 2021: My Sydney colleague, Andrew Bailey, drew my attention to Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690 at [40]ff, which is to similar effect.

Original post: In Carter v Mehmet [2021] NSWCA 32, the Court granted the respondents’  security for costs application in part because the appellant’s solicitors had much to gain from the appeal’s success and had agreed to do it no win no fee, and so were creditors associated with the proceeding, but the appellant had not proven that the solicitors could not contribute funds in order to provide security.  Since it was not suggested that they could not provide funds to enable the appellant to give security in the order of scores of thousands of dollars (though there was evidence that they would not do so), it could not be said that the appeal would be stultified by virtue of the inability of the appellant and those who stood behind him to provide the security.

If you are a lawyer whose fees are unpaid from round one, consider very carefully whether you agree to do the appeal no win no fee, as opposed to entering into an orthodox retainer in the knowledge that payment may be difficult unless the appeal succeeds.  If you are an impecunious appellant in that situation, think even harder about accepting or proposing such a retainer, since — good as it sounds — it may effectively preclude you from pursuing the appeal.

Continue reading “Think twice before agreeing to punt an appeal where you and the other side are unpaid in relation to round one”

Chaplin v Hicks

Seymour Hicks

Chaplin v Hicks [1911] 2 KB 786 is often cited as the first loss of a chance case. I thought it was more or less a case about a lottery in which the plaintiff missed out on a, say, 10% chance of winning a prize and recovered 10% of the prize monies.  But by reading it I discovered it is actually a case in which the plaintiff missed out on competing by audition with 49 others for twelve three year jobs as an actress.  So about one in four of the 50 would get a job the total average pay for which was £624.  Miss Chaplin recovered £100 at first instance, but how that figure was arrived at was not explained, because this was an appeal from a jury decision in a case presided over by Pickford J. Evidently, £100 is not about a quarter of £624, though.

If anyone can point me to the first instance decision, original newspaper advertisement, or a photo of Miss Chaplin, I would be most grateful. Continue reading “Chaplin v Hicks”