The Australian Professional Liability Blog
Stephen Warne on professional negligence, regulation and discipline around the world
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 …
Continue reading “Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)”
I was asked to talk to my colleagues at the Victorian Bar recently in relation to costs recovery in pro bono cases. It is now more certain that costs may be recovered from the other side by victorious litigants who engage their lawyers on the basis of a greater variety of pro bono arrangements. That …
Continue reading “Costs recovery in pro bono cases in Victorian state courts: Part 3”
A man tried to sue for professional negligence in his capacity as an assignee of the alleged victim of that negligence. The case was determined on a limitations point, but in Kovarfi v BMT & Associates Pty Ltd [2012] NSWSC 1101 Justice McCallum of the Supreme Court of NSW gathered together the authorities in relation to …
Continue reading “Latest on assignability of tortious professional negligence claims”
This is part 2 of a serialisation of a paper I gave on costs disclosure obligations under the Legal Profession Act, 2004 and the consequences of not complying. Part 1 is here. This post is not exhaustive of the answers to the question ‘To whom need disclosures not be given?’ For more answers to that …
Continue reading “Costs disclosure obligations and consequences of not complying: part 2”
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 is a case about the construction of partly written and partly oral contracts, and the application of the parol evidence rule to them. Justice of Appeal Campbell summarised the cases in one of those beautifully crafted little numbered lists that this little newspaper …
I prepared an application to restrain a firm of solicitors from acting in a Corporations List matter in the Supreme Court recently, and so have been reading the latest cases about conflict injunctions. The very latest is TJ Board & Sons Pty Ltd v Castello [2008] VSC 91, where the plaintiff applied unsuccessfully to restrain …
Continue reading “Both sides apply to restrain the other’s lawyers from acting”
Praag v W & T Lawyers [2008] VCAT 307 was a rare thing: a case in VCAT’s Legal Practice List actually prosecuted pursuant to the Legal Profession Act, 2004. Mr Praag was his late mother’s executor. Before her death, she lived in Canberra. Her assets were a house in Canberra and $50,000 cash. Mr Praag …
Continue reading “VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work”
The other day, I did a very geeky thing which was also a bit unonline. I had a coffee with fellow lawyer blogger, the mysterious Legal Eagle. One result of the coffee was that somehow I charmed her into writing a second case note of interest to readers of this blog — this time on …
Update, 19 February 2008: Fellow Melbourne law blogger Legal Eagle has kindly written a case note on Equuscorp v Wilmoth Field Warne. Update, 21 December 2007: Another two advocates’ immunity cases: 1. Symonds v Vass [2007] NSWSC 1274, 36,000 words, after nearly 3 weeks of trial. See Ysaiah Ross’s case note in his article in …
I have never understood what it is about Justice Brooking’s extended obiter on the fiduciary duty of loyalty in Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 which prompted such apoplexy. I would have thought that the second most obvious conflict of duties (after acting concurrently for two opposing parties) would …
Continue reading “Law Institute Journal tallies the score on Spincode”
I have always been curious about the extent to which a term might be implied into a retainer giving contractual force to the rules of conduct whether found in rules of the Law Institute or found in the regulatory Acts. In Equuscorp Pty Ltd v Wilmoth Field Warne (No 3) [2004] VSC 164, Byrne J …
Continue reading “No term implied into retainer to comply with the Legal Practice Act, 1996”
Many a smug lawyer has grinned at me across a mediation table and trotted out some version received by Chinese whisper of Lord Denning’s typically over-reaching dictum in his dissenting judgment in Griffiths v Evans [1953] 1 WLR 1424 at 1428; [1953] 2 All ER 1364 at 1369 said to prove conclusively that the absence …
Continue reading “That goddam dictum of Denning about file notes and conflicts of evidence”
The retainer referred to in this earler post on Equuscorp Pty Ltd v Wilmoth Field Warne [No. 3], which contained a whole agreement clause, was found to contain an implied term that the solicitors “will follow the instructions given by [the client] in relation to the files.
Gee do plaintiffs adore sprinkling a bit of fiduciary duty action into their pleadings against solicitors. Their counsel see it as moon dust. A sophisiticated plaintiff (who had been party to separate litigation which eventually culminated in a High Court case about contractual certainty) tried it on in a somewhat novel way in Equuscorp Pty …
Continue reading “Fiduciary duties and the sophisticated client”