Why you needn’t call a solicitor an ‘Australian legal practitioner’

Update: The nice thing about blogging compared with, say, writing a book (not that I would know) is the interactivity.  Lawyers are obviously still a bit chary of the comment function, given how many of them email me rather than comment.  Nothing prompts the sharpening of e-pencils quite like an error, and it seems I have made one, in an article, ironically, about errors of exactly the same species.  To stem the deluge of correspondents (which stands at 2) let me recognise that ‘beaks’ are not, in common parlance, lawyers, but Magistrates, and judges, possibly even tribunal members.  I am not convinced that all of the guests on 3RRR’s Lawyers Guns & Money’s impossibly amusing ‘Beak of the Week’ segment were such folk, but then again, that was a long time ago.

Original post: Often enough, I see pleadings against barristers, and against solicitors, which recite that the defendant is an Australian legal practitioner within the meaning of the Legal Profession Act, 2004. I am often unsure why. I think it would be fine to plead that the defendant is a solicitor, or a barrister. The other day, I came across a decision of Justice Byrne which considered a somewhat analogous question in a completely different context: Smith v Harris [1996] 2 VR 335. It reassures me that changes in statutory language need not necessarily affect the use in the law of ordinary language: see below. But there are moments when the language of the Act should be pleaded, and when you must, as a matter of law, call yourself an Australian legal practitioner rather than any old beak.

The time for pleading that the defendant is an Australian legal practitioner is where a remedy under the Legal Profession Act, 2004 is sought. But in most professional negligence proceedings against lawyer, there will be no such claim.

Regrettably, I think it is necessary to have on your solicitor’s stamp the words ‘An Australian legal practitioner within the meaning of the Legal Profession Act, 2004.’ That is because rule 43.01(7) of the Supreme and County Courts’ Rules says ‘The person before whom an affidavit is sworn shall legibly write, type or stamp below his signature in the jurat his name and address and a statement of the capaciy in which the person has authority to take the affidavit.’ The authority to take the affidavit comes from s. 123C(1)(g) of the Evidence Act, 1958 which says, when read with s. 3 (‘Definitions’): ‘Affidavits for use in any court … may be sworn and taken within Victoria before– (g) [an Australian legal practitioner within the meaning of the Legal Profession Act, 2004]’.

Smith v Harris Maybe you recall the case staffer Cheryl Harris launched against Victorian Minister Ian Smith in the 1990s. Her laywers copied the originating process, the Complaint, to the press. A media frenzy ensued. It was said they had had an affair, and it all went pear shaped. Minister Smith hired Jeff Sher and Michael Wheelahan and sued for defamation. Mark Dreyfus, for Ms Harris, said the publication was protected by absolute privilege, relying on s. 4 of the Wrongs Act, 1958. It said ‘No action … shall be maintainable against any person for publishing a faithful and accurate report of proceedings in any court’. Sher and Wheelahan said that the defamation proceeding was not an ‘action’ because the new Supreme Court Rules introduced in 1986 spoke only of ‘proceedings’, and that there were therefore no ‘actions’ to which s. 4 could attach any more. Justice Byrne said (at 343-344) that ‘actions’ were still ‘actions’ in the ordinary language of men, regardless of what they were called in any particular court for the purposes of the rules regulating its procedure:

‘One of the changes made by the Supreme Court Act 1986 and Ch I of the rules of 1986 was to characterise all civil proceedings in this court whether commenced by writ or originating motion or as otherwise provided by or under any Act or the rules as “a proceeding”: r1.13. Under s3(1) of the Supreme Court Act 1986 “proceeding” is defined to mean “any matter in the Court other than a criminal proceeding”. Previously, the generic term for proceedings in the court was “action” which was defined in s3 of the Supreme Court Act 1958 to mean “a civil proceeding commenced by writ or in such other manner as prescribed by Rules of Court, and does not include a criminal proceeding by the Crown”. It was put that, with the disappearance of actions in these provisions, s4 of the Wrongs Act had nothing to fasten on.

To my mind, the submission is ill-founded. The fact that the 1986 statutory regime ceases to use “action” as a term to describe civil proceedings does not mean that the word has been stripped of meaning in another statue or in ordinary parlance. “Action” is not defined in the Wrongs Act except in PtIV. Where the word is used as in s6 and s52 (libel proceedings), s14 (action of seduction), s17 (action for the benefit of dependants), s30 (damage by aircraft), it should be given some meaning. Whether this may be its popular meaning of civil proceeding commenced by writ (cf R v Day [1985] VR 251 at 266, per Gobbo J) or its more general technical meaning, as to which see Bradlaugh v Clarke (1883) 8 App Cas 354, is of no present consequence. The proceeding before this court is an action however that expression may be understood.’

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