In Malouf v Malouf [2006] NSWCA 83, (2006) 65 NSWLR 449 the NSW Court of Appeal, led by President Mason disapproved of the practice allowed below of a litigant appearing for himself in relation to some points and being represented in relation to others. Warwick Malouf had sued his brother for fraud, and represented himself, and lost ([2005] NSWC 9). He appealed, claiming that the judge had not assisted him sufficiently. What seems likely to have happened is that Mr Malouf filed a fairly average set of grounds of appeal, retained counsel who told him so, drafted some good ones, which were tacked onto the existing grounds by Mr Malouf, and the barrister said he could not support Mr Malouf’s grounds and would only make advocacy by reference to the new ones. Mason P said of this ploy that it had the tendency of much mischief: Continue reading “Litigant may not represent himself in those bits barrister spurns”
Can the taxing master decide professional negligence claims?
Update, 10 March 2009: See also these posts about Macteldir Pty Limited v Roskov [2007] FCAFC 49, and King v Stiefel [2023] EWHC 453, case note here.
Update, 3 April 2009: It’s still going: Winn v GHB [2009] VSC 93.
Original post: In Winn v GHB [2006] VSC 476, Winn won, another victory for a pro se litigant against their former solicitors, though it seems this former teacher has recently joined the Queensland bar, which suggests she was at something of an advantage over your average punter in unravelling the arcane intricacies of the Supreme Court’s taxing court. Justice Kaye considered whether the Taxing Master was empowered to tax items off a bill of costs in taxable form on a solicitor-client taxation on the basis of professional negligence, and if so, when the process of doing so ought to stop in favour of a properly constituted professional negligence proceeding. His answers? Yes, and it’s a question of degree. Continue reading “Can the taxing master decide professional negligence claims?”
Defence found to be an abuse of process in the form of a collateral attack; Disciplinary ruling prima facie evidence in later civil trial
The latest Australian Law Journal has a critical note about Conlan v Simms [2006] EWHC 401 (Ch), in which an English High Court judge held that a ruling of the Solicitors Disciplinary Tribunal was prima facie evidence in a later civil trial that the solicitor had been struck off for dishonesty, watering down the proposition in Hollington v Hewthorn & Co. Ltd [1943] KB 587 that a criminal conviction was inadmissible in a civil trial of the same facts at issue in the criminal case. Continue reading “Defence found to be an abuse of process in the form of a collateral attack; Disciplinary ruling prima facie evidence in later civil trial”
Gullible but not dishonest solicitor gets 6 months for failing to report own client to authorities
It happened in England (see their Law Society’s sophisticated guidelines) in R. v McCarten [2004] NICA 43, but a similar law is coming our way: this month, the Anti Money Laundering and Counter Terrorism Financing Bill 2006 was introduced into federal parliament. Another bill is anticipated which will extend it specifically to lawyers, discussed below. (Update: see the Blakes take here.)
The English cases are digested in this Lawyers’ Weekly article. In R v. Griffin, a proceeds of crime case, the solicitor was jailed for 15 months, though in circumstances of wilful blindness: Continue reading “Gullible but not dishonest solicitor gets 6 months for failing to report own client to authorities”
Daming He’s experience of the legal regulators
The unsuccessful complaint to the Legal Ombudsman, referred by her to the Victorian Bar, took more than 5 months to complete. Then the Law Institute complaint went on for about 2 months. The Legal Profession Tribunal made a decision 10 months later, the Full Legal Profession Tribunal 3 months later again. The Court of Appeal process took two and a quarter years. Continue reading “Daming He’s experience of the legal regulators”
The subject matter of Daming He’s complaint
Update: 17 January 2008 VCAT has re-heard this case, and has made different findings of fact from some of those recounted below. See He v A & Co Pty Ltd [2008] VCAT 3.
Original post
(This is part 2 of the post about He v A & Co Pty Ltd [2006] VSCA 150; [2006] VSCA 235. Part 1 is here.)
Mr He had a dispute with the insurer of the negligent driver who caused the collision which damaged his car. The insurer accepted its driver was at fault. The dispute was only about how much compensation Mr He was legally entitled to. Whatever a court would order the negligent driver to pay, the insurer would pay Mr He, at least in theory. Most “crash and bash cases”, as lawyers call them never get to court. His did. The insurer said his car was only worth $800 at the time of the accident, and since repairs would cost $4,000, they would take his car and sell it for scrap, and pay him its value. They said it was an economic write off. Continue reading “The subject matter of Daming He’s complaint”
Daming He’s pro se triumph against his lawyers in the Court of Appeal
Update, 16 January 2008: VCAT has taken the shine off the Daming He story on the re-hearing of the matter remitted by the Court of Appeal, no doubt greatly devaluing the film rights. See [2008] VCAT 3. Acting President Bowman, and Members Shattock and Campbell found that Mr He was an unconvincing and not especially frank witness. They found no loss, and dismissed his case. It turns out that before Mr He settled his crash and bash litigation, the assessor learnt that part of the damage the cost of repairing which he had estimated was not caused by the accident which the other driver had admitted liability for. He said he would not be able to give evidence in terms of his estimate. No wonder the case was settled. I wonder what the negligent driver’s insurer would think about what I presume was the non-disclosure of this material fact in the negotiations which led to the settlement. Remember this case about misleading conduct in negotiations? Now here’s an idea for the prolongation of this saga: the whole case could be reopened on the basis that it was procured by fraud. Meanwhile, no doubt this matter will find its way back to the Court of Appeal.
Original post:
He v A & Co Pty Ltd [2006] VSCA 150; [2006] VSCA 235.
Daming He is a success story in the world of litigation pro se (self-representation). Six years ago, he was the innocent victim of a collision in which his car was damaged. He has to date recovered 70% of his modest loss, but has suffered further losses in the twists and turns of litigation, and no doubt thinks little of the justice system. It is quite conceivable that the justice system would have finished its process thinking little of him, but the fact is that the highest court in the State has gone thoroughly through his complaints about his lawyers and found him to have a point, and that is a cause for celebration. Continue reading “Daming He’s pro se triumph against his lawyers in the Court of Appeal”
How a case half in and half out of the limitation period is dealt with
The approach of VCAT’s Legal Practice List to a nice limitations point is illustrated by Wells’s Case, [2006] VCAT 2370 (Senior Member Howell, 16 November 2006), also the subject of this post. What must have been a professional negligence action was commenced just 4 days before the 6th anniversary of the Legal Practitioner ceasing to act for the Client. The limitation period was such that only actions arising in the 6 years before the claim would be within time. The Client said the Legal Practitioner negligently failed to do various things. VCAT decided that only the Legal Practitioner’s conduct during the 4 days during the retainer but within the 6 years before the claim could be enquired into. Continue reading “How a case half in and half out of the limitation period is dealt with”
Solicitor gets 4 months’ holiday for sharing receipts with unqualified conveyancer
In Legal Services Commissioner v DLM [2006] LPT 13, the solicitor was ordered to pay the costs of the prosecution, publicly reprimanded, and had his practising certificate suspended for 4 months. He was guilty of sharing receipts from his law practice with an unqualified conveyancer. He agreed with a former colleague, not legally qualified, that she would find clients, arrange finance for their purchase of homes, and that he would then complete the conveyancing work she had already commenced. She got $1,000, and he got $1,500 though separate bills were rendered. The Tribunal looked at the substance of the whole thing and found that in truth, there was a sharing of receipts contrary to the prohibition on lawyers sharing receipts from legal practice with non-lawyers, which is found in Queensland in the rules of professional conduct. The Chief Justice of Queensland, Paul de Jersey, characterised the arrangement, which, it must be said is somewhat difficult to follow from the reasons like this: Continue reading “Solicitor gets 4 months’ holiday for sharing receipts with unqualified conveyancer”
Dob-in rule lurks in Victorian solicitors’ practice rules
A newish conduct rule compels solicitors to report every dishonest act by another practitioner, and every act which is prejudicial to the administration of justice or which would diminish public confidence in its administration. This is not just my fancy; the Law Institute itself says that the rule requires dobbing in and is not only about self-reporting. Relevantly, rule 30 of the Professional Conduct and Practice Rules 2005 says (and this is not a quote): Continue reading “Dob-in rule lurks in Victorian solicitors’ practice rules”
Lawyer doesn’t get admitted for taking the rap for boss’s red light infringement
Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338.
Kala Subramaniam (now Jackson) took the rap for a red light infringement notice addressed to Leigh Johnson, her criminal lawyer boss, maintaing the perjury in court on oath, bragged about it within the law firm she worked in sufficiently obnoxiously to convince one of her colleagues to wear a police wire and record an excruciating confession, got convicted under a special process for the mentally ill, appealed all the way to the High Court, got the conviction quashed on procedure associated with insanity, played the whole thing down in her application for admission, and managed not to get admitted as a result. I must admit to enjoying the schadenfreude. Continue reading “Lawyer doesn’t get admitted for taking the rap for boss’s red light infringement”
When is a solicitor not acting as a solicitor?
In Swart v Carr [2006] NSWSC 1302, the NSW Supreme Court’s Justice George Palmer engaged in a fairly earnest survey of cases addressing this question in the course of a decision about whether a solicitor was engaging in legal practice, and whether he was doing so within the definition of his professional indemnity insurance policy. The answer was yes on both counts, so the punters recovered the US$500,000 they thought had been lost. Continue reading “When is a solicitor not acting as a solicitor?”
Solicitors’ Liability Committee v Gray summarised by NSW Supreme Court judge
In Swart v Carr [2006] NSWSC 1302 (see next post) Palmer J summarised Solicitors’ Liability Committee v Gray insofar as it related to the construction of the term “the private practice of a solicitor” in the SLC’s professional indemnity policy: Continue reading “Solicitors’ Liability Committee v Gray summarised by NSW Supreme Court judge”
Misconduct constituted by barrister’s misleading mediation statements
In Legal Services Commissioner v M [2006] LPT 012, a leading Brisbane barrister was fined $20,000 (his fees of $9,100 plus $10,900 penalty) for engaging in fraudulent misrepresentation on the instructions of his client in a mediation in which the insurer was induced to pay the barrister’s cancer-riddled plaintiff client over $1 million on a claim based on a near-normal life expectancy. He was found guilty of professional misconduct, and publicly reprimanded (I wonder whether a solicitor was sitting blithely by and escaped prosecution). Frankly, I reckon he was lucky to get away with a fine and reprimand given that he contested the charge by reference to the “startling” contention, described by the Tribunal:
“[25] The respondent argues that his conduct in continuing to rely on the Evidex reports without disclosing the cancer facts was not tantamount to some representation that he was not aware of facts that could deleteriously impact on longevity. His case characterizes the compromise negotiations as “commercial”, conducted on a tacit, common assumption that, in deciding whether to settle, the parties would rely exclusively on their own resources and information. There would not, it is said, have been a reasonable expectation that influential information communicated during the negotiations would not knowingly be false.”
But the content of what must surely be the pre-eminent professional non-client duty – not to mislead — is not well-known, and litigation is so obese with toleration of falsehoods, that I have some limited sympathy for the confusion the barrister claims to have fallen into, having researched the issue. Because, contrary to the idiotic utterances of some regulators, legal ethics are not intuitive. There is no “gut feel” test. Legal ethics frequently involve a duty not to volunteer the truth. Continue reading “Misconduct constituted by barrister’s misleading mediation statements”
The duty not to mislead in negotiation
I would be very surprised if the most commonly committed species of misconduct were not engaging in misleading conduct in negotiation. But there is very little written about it. Justice John Byrne of the Supreme Court of Queensland, sitting in the Legal Profession Tribunal, in Legal Services Commissioner v Mullins [2006] LPT 012 (see next post) footnoted a number of articles on the topic, most of which have hyperlinked citations: Continue reading “The duty not to mislead in negotiation”
Lawyer claiming inexplicably high fees against other side restrained from acting
In the case of Brogue Tableau Pty Ltd v Tottle Partners [2006] WASC 273, Master Sanderson of the Supreme Court of Western Australia, exercised the Court’s inherent jurisdiction to restrain a firm from acting to protect the administration of justice. The fees they had charged their client, and which they were seeking against the other side on behalf of the client, seemed inexplicably high. The other side suggested they had overcharged, and the judge said the administration of justice could not tolerate them continuing to act in those circumstances. Continue reading “Lawyer claiming inexplicably high fees against other side restrained from acting”
Judge uses big word
President Mason chucked “tergiversation” into his judgment in Winnote Pty Ltd v Page [2006] NSWCA 287 at [39], handed down on 31 October 2006. A google search for the word in “pages from Australia” returns only 158 hits. What it means is “equivocation: falsification by means of vague or ambiguous language”. Jeepers! In a case about peat farmers out in the countryside who lost the trial, lost the appeal, and failed to get costs of the unsuccessful cross appeal. Now they have to buy a very big dictionary. Heartless judge.
Mega firm escapes liability for clear negligence in limitations decision
Winnote Pty Ltd v Page [2006] NSWCA 287 is not only a case about digging up peat for profit but a learned essay on the application of that simple little rule that you can’t sue your lawyer more than 6 years after your cause of action against him accrued. Victorian soils yield difficult legal questions: Perre v Apand [1999] HCA 36, a 70,000 word exegisis devoted to making the law of tortious damages for pure economic loss even less clear than before, was a case about digging up potatoes for profit. The decision is a crystal clear illustration of two principles: (i) a limitation period for a professional negligence claim may expire before the client is aware of either of the negligence or the loss; and (ii) the limitation period commences when some non-negligible loss is first suffered, even if the main loss is suffered a lot later. It also makes clear that in negligent advice cases (or negligent failures to advise cases) once the negligence has occurred, there is no ongoing duty to give the correct advice during the course of the remainder of the retainer, and the courts will conduct their analysis by reference to the substance of the matter, not by reference to the ever-so-clever pleadings of sophisticated plaintiffs. Continue reading “Mega firm escapes liability for clear negligence in limitations decision”
No litigation privilege in anticipation of non-”truly adversarial” proceedings
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530 says the litigation limb of legal professional privilege at common law is not available where the communication was brought into existence for the dominant purpose of use in or preparation for litigation which is not truly adversarial (the situation is no better under the Uniform Evidence Acts, where the litigaiton limb is limited to anticipated litigation in courts, defined to mean places “required” to apply the laws of evidence). The litigation in point was administrative review by the AAT. Justice Neil Young made a similar finding in AWB v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571, in relation to documents prepared for use in, or preparation for, the AWB Royal Commission. I wonder whether we will one day see a suit against a lawyer for negligently failing to inform clients of this exception to what is generally understood to be the unfettered secrecy of lawyer-client communications.
On the perils of accepting the un-met wife’s instructions from the husband
Graham v Hall [2006] NSWCA 208 is a case about a solicitor who paid the price for taking what he thought to be a husband and wife’s instructions from the husband alone, lured by the husband into doing so by the preposterous lies that the wife was (i) stricken with cancer, too sick to attend on the solicitor and (ii) not willing to talk to him by telephone because she was upset at the way she and the husband had been treated when the solicitor was previously acting against them on behalf of one of their creditors. The solicitor admitted in cross-examination that he heard alarm bells, but he did not pay them enough attention. Continue reading “On the perils of accepting the un-met wife’s instructions from the husband”