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  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.
Continue reading “Disciplinary prosecutions arising out of criminal convictions and civil findings against professionals”
Taylor v Hobson  QSC 226 is a strange old case. Plaintiffs sued defendants for damages alleging they had been misled into purchasing a business. They sued the vendors and the vendors’ solicitors, alleging that each of the vendors and the solicitors had made misleading representations. The solicitors (through their insurer) settled with the plaintiffs. The solicitors promised to pay a settlement sum to the plaintiffs and the plaintiffs promised to let lawyers appointed by the solicitors’ insurer act for them and run the plaintiffs’ case for them, with a view to recovering damages from the vendors and giving those damages to the solicitor defendants. It was a creative form of litigation funding, if you will. But it was a bit too creative for the Supreme Court of Queensland.
The insurer was to appoint new solicitors, not the solicitors which had been representing the solicitor defendants in the proceeding. Nevertheless, the Court stayed the case as constituting an abuse of process for so long as the defendant-appointed solicitors were running the plaintiffs’ case. The parties to the settlement might now amend it so as to remove the element of control over the plaintiffs’ case, therefore. The case may continue, and that aspect of the settlement deed which required the plaintiffs to give to the solicitor defendants the proceeds of their claim against the vendors might still have its operation.
In De Armas v Peters  NSWSC 1050, the Supreme Court of NSW declined to grant leave to appeal from a decision of the Local Court. The Local Court had allowed a man to sue for the cost of repairs to his car, even though he had previously sued her for car hire costs he incurred while those repairs were being undertaken. And even though, in that first case, the Local Court had found him to be the negligent driver, not the woman. Impossible? There was of course a twist. The first suit was brought with the involvement of a car hire company from whom the man had hired the car he used while his car was being repaired. No doubt they had told him that the car would be at no cost to him and the cost of the hire would be recovered by the car hire company’s solicitors from the negligent driver. The second suit was brought by his insurer, having stepped into his shoes through the law of subrogation. The man’s losses were partly insured and partly uninsured, hence his deal with the car hire company to which he was probably referred by his repairer. And the woman’s insurer had not taken any defence of abuse of process in either proceeding before she obtained judgment in the first. You can watch a discussion between AAMI’s solicitor and barrister about the decision on the excellent BenchTV here. Continue reading “Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?”
A Western Australian disciplinary case, Legal Profession Complaints Committee v CSA  WASAT 57 is interesting in a number of ways. A criminal lawyer was the manager of a strata corporation. She owned two units and the complainant the third. The complainant affixed an airconditioner to a wall which impeded on a common area. She sought legal advice. Her lawyers wrote a letter of demand to the complainant and charged a few thousand dollars. The complainant did not fix the problem within the 14 days demanded, so the lawyer sued in the Magistrates’ Court. The case was settled on the basis that the airconditioner would be relocated and the lawyer withdrew the proceeding without seeking costs. When the complainant sold the third unit, the lawyer demanded that the complainant pay her the few thousand dollars her lawyers had charged her for the advice and the letter of demand. She did so by a letter of demand drafted for her by another lawyer, though the involvement of this second lawyer only emerged at the disciplinary hearing. When the complainant did not pay up, she sued for them in her personal capacity. The suit was found to have no legal foundation, but the lawyer said that she mistakenly thought that it did have a legal foundation, and that civil proceedings were not her thing. The case says:
1. The suit was an abuse of process because there was no legal foundation for suing for the recovery of ‘pre-litigation’ legal costs.
2. The lawyer’s conduct in threatening to bring and then bringing a suit which was an abuse of process was common law misconduct but was also a breach of a rule which prohibited lawyers from claiming on behalf of a client costs in a letter of demand for recovery of a debt because she was acting for herself in writing the letter (even though no legal letterhead or reference to her status as a lawyer was involved).
3. There is no defence of honest and reasonable mistake in professional discipline.
4. It is inappropriate for a disciplinary tribunal to make what the prosecutors described as ‘an incidental finding of dishonesty’ in relation to statements made during the investigation in respect of which no charge had been laid in the disciplinary proceeding. Any such allegation ought to be the subject of a separate process (though the Tribunal then went ahead and found that the allegation was not made out on the Briginshaw standard anyway). Continue reading “Self-represented solicitor guilty of misconduct for breaching a rule expressed to regulate conduct when acting for a client”
Clyne v New South Wales Bar Association (1960) 104 CLR 186;  HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of getting the wife’s solicitor out of the case. Those allegations were in fact made in a private prosecution by the husband of the wife’s solicitor for maintenance. Reading the decision, one might think that striking off the rolls was a relatively harsh penalty by today’s standards for the conduct recorded, especially since his client succeeded at committal in having the wife’s solicitor presented for trial. And also if one believes Mr Clyne’s autobiography where he asserted:
‘Particulars given by the New South Wales Bar Association made it quite clear that it was not part of the charge to say that my advice to prosecute was wrong, or improper. Indeed, as I have mentioned before, the advice to prosecute Mann was given in writing, by the eminent and respected Sydney QC, Mr Newton, who later became (and still is) a judge of the New South Wales District Court; and no one has ever criticized Mr Newton for his advice.’
But Mr Clyne had done it before and been sternly warned (see CLR 202) and was unrepentant to the moment he was struck off. Further, he was absolutely one out of the box (he will be the subject of a further blog post) and was no doubt regarded as an excrescence on the legal system to be excised at almost any cost. He went on to irritate the authorities as a professional tax evader and unashamed advocate of tax evasion, writing many books on the subject and others (e.g. Adventures in Tax Avoidance, How Not to Pay Any Taxes, Guilty But Insane) while living a decadent lifestyle which hopped, first class, between hotels in Sydney and his native Vienna. Like George Herscu, one of the villains in White Industries v Flower & Hart, Clyne spent time in jail, and only avoided spending more time by fleeing America without a passport while on appeal bail. He seems to have been intelligent and to have had enough charm to be married to a Welsh entomologist who also wrote many rather different books (e.g. Silkworms, All About Ants, and Plants of Prey). But his autobiography (Outlaw Among Lawyers; the Peter Clyne Story, Cassell Australia, 1981) reveals a thoroughly dishonest if colourful character with very little if any regard for the law. Continue reading “Clyne v NSW Bar Association: the leading case on unfounded allegations”
This post is a case note of Justice Goldberg’s famous decision in White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169;  FCA 806 as well as of associated decisions and surrounding controversy. Because it is what I am working on at the moment, it concentrates on that part of the case which relates to the unjustified pleading settled by Ian Callinan QC and signed by his instructor Michael Meadows, alleging that the builder lied to the developer in relation to the cost of building a shopping centre just north of Brisbane. It’s a big post, to kick off the year.
Facts (not all drawn from the judgments)
George Herscu died just before Christmas, aged 85. He was the alter ego of a property development group headed up by the Hersfield Development Corporation. According to 4 Corners, he was the biggest property developer in the country. According to The Australian, he lived in a Toorak mansion, owned a Melbourne Cup winner, and was once the third richest man in Australia after Robert Holmes a Court and Kerry Packer, one place ahead of Alan Bond. He was a millionnaire by 30, and made and lost a fortune of $500 million. He left Australia for California in 1997 and rebuilt substantial wealth. Towards the end of his life, he was engaged in bitter litigation with his son, who described him as ready to spend whatever is needed to “crush anyone that stands in his way”. Ironically, given what follows, Mr Herscu’s lawyers accused the son of mis-using the deposition process. According to The Australian, they said:
‘Your clients’ continued insistence on trying to push an 80-year-old man with hypertension, a heart condition, failing hearing and many other health problems into a deposition room – having already deposed him for 27 hours – is shocking and wrong. The only conclusion one can reasonably draw from your clients’ posture is that their litigation strategy involves attempting to subject George Herscu to so much stress and pressure he simply dies. To use the tools of discovery for this purpose is reprehensible, and indeed revolting.’
Very alarmingly, he was asked in those depositions about allegations that he had watered down the beer in a pub. Continue reading “White Industries v Flower & Hart: unfounded allegations of fraud”
I have posted before about the Darwin solicitor whose disciplinary complaint against a fellow practitioner resulted in her being fined $19,500 for making that complaint without a proper factual foundation. I have just come across another case in which a female solicitor was disciplined for her intemperate allegations against another lawyer, despite having had an honest belief that she had a reasonable basis for making them: Legal Profession Complaints Committee v in de Braekt  WASAT 1. She was recently struck off:  WASC 124.
A panel provided over by a judge of Supreme Court of Western Australia and President of WASAT, Justice John Cheney, said in the earlier decision:
‘107 Legal practitioners should be slow to make allegations of impropriety against other legal practitioners or their client. Such allegations should not be made unless there is a reasonable basis upon which to make them. The same can be said of allegations of abuse of process. It is apparent that the impropriety asserted by Ms in de Braekt was based upon her view that, having regard to the various matters upon which she relied, the winding up proceedings amounted to an abuse of process.’
I am looking at another matter at the moment in which a complaint has been made to a Legal Services Commissioner by one of the lawyers for one party to extant litigation against one of the other party’s lawyers, in relation to conduct which is itself the subject of the civil proceedings and which is in fact said to have generated the information on which those proceedings are founded. Even if the disciplinary complaint is stayed pending the exhaustion of appeals from the civil proceedings, it seems to me that the propriety of making a complaint in such circumstances is doubtful. Does anyone have any views, or — better — authority on the question?
Without first formally demanding payment of a debt, creditors served a bankruptcy notice. The debtors were insolvency practitioners and there was no suggestion that they were insolvent. Federal Magistrate Raphael set aside the notice on the basis it was an abuse of process, issued with a purpose not of making the respondents bankrupt but of embarrassing them. His Honour said:
‘The proper purpose of seeking a sequestration order against the estate of a debtor is so that a debtor, who is unable to pay his debts as and when they fall due, should have his affairs controlled for the benefit of all his creditors and not just specific ones. Allied to this purpose is the prevention of the debtor incurring further obligations which he will not be able to meet. It is a public purpose. The bankruptcy process is not to be used for private ends.’
On appeal, the decision was confirmed by the Federal Court’s Justice Marshall. In Lord v Rankine  FMCA 668, at  –  (despite the numbering below) his Honour said:
Continue reading “Federal Court sets aside bankruptcy notice used for debt collection against solvent individuals as abuse of process”
Update, 16 August 2010: Justice Emerton’s decision dismissing the appeal is at  VSC 351.
Original post: In Walsh v Croucher  VSC 296, a convicted fraudster who was, at least in about the year 2000, a bald-faced, opportunistic, calculating and manipulative liar (see R v Walsh  VSCA 98 and R v Walsh  VSC 114), sued his appeal counsel for negligence, breach of fiduciary duties, and misleading and deceptive conduct. But for the negligence, the claim contended, his appeal would have succeeded. The Supreme Court let the proceedings roll along for two and a half years before Associate Justice Mukhtar permanently stayed them as an abuse of process. Mr Walsh’s attempts, in the very last days in Victoria of the grand jury, to convene one, were not enough to avoid the termination of his negligence claim.
The proceedings were an abuse of process in that they sought impermissibly to attack collaterally the decisions of the jury and of the Court of Appeal that he was guilty of the frauds he was convicted of. It was impermissible for him now to contend, as a foundation of his cause of action against the barrister, and not having appealed the decision of the Court of Appeal, that he was not guilty, because to do so is against public policy. I considered the law of collateral attack abuse of process in its applications to solicitor’s negligence claims in ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’, (2002) 10 Torts Law Journal, 167. Let me know if you would like a copy by email. Associate Justice Mukhtar’s explanation is concise and worth setting out in full: Continue reading “Fraudster’s negligence claim against appeal counsel permanently stayed as collateral attack abuse of process”
Update, 1 February 2012: Glen Wright of Tas Legal brought to my attention the case of Gavin Boyle Constructions Pty Ltd v Fabrok Pty Ltd  QDC 214 in which the judge set aside a regularly entered default judgment, but declined to award costs in favour of the plaintiff because it knew, pre-commencement of the proceeding, that the defendant denied liability and failed to enquire of the defendant’s solicitor whether it intended to defend before signing judgment. His Honour relied on Coburn v Brotchie and s. 5 of Queensland’s Uniform Civil Procedure Rules, which echo the overarching obligations in Victoria’s Civil Procedure Act, 2010.
Original post: I must say I was brought up believing that there was nothing at all wrong with rushing down to the court’s registry and entering default judgment if an appearance, or defence, was not filed by the due date. Apart from anything else, you force the other side to set out enough on oath about their case to prove an arguable defence, plus you get the psychological advantage of an early interlocutory costs order, even if the judgment is set aside, as it usually is. But where there is reason to believe that the defendant desires to defend, the practice is frowned upon, especially where the plaintiff is represented by a solicitor who knows who represents the defendant. The duty of professional courtesy comes into play. The procedure is really there to provide a vehicle for the production of judgments in those many cases which pass quietly through the courts, particularly the Magistrates’ Court, without the defendant participating. In fact ‘snapping on’ default judgment in bad faith, to use the strangely quaint language of some of the older cases, is an irregularity entitling the defendant to have the judgment set aside ex debito justitiae as they say in the classics (as of right). And it generally carries with it a costs sanction. I was vaguely aware of these authorities, but thought they were less unanimous and less modern than in fact they turn out to be. I have extracted the relevant bits below. Continue reading “‘Snapping on’ judgment in default”
Stays scare me. I suspect they attract obscure law that my opponents know but I don’t. Why does the law need the permanent stay? How is it different from a judgment? When is a stay a permanent stay, and when not? A solicitor friend who is one of the most experienced professional negligence lawyers in Victoria sent me Watson v Irwin Mitchell (a firm)  EWHC 441 (QB);  PNLR 32 because he thought it was up my alley. He is the only person I know who consistently introduces me to new authorities of interest to this blog quicker than I find them. In an effort to conquer my fears, I read it.
Claimants were dissatisfied with the settlement procured by their solicitors. So they sued for negligence, as you do. And no advocates’ immunity over in old Blighty any more. The claimants’ interlocutory defaults led to a costs order against them and a stay. Not a permanent stay, but a stay pending further order. It remained open to the claimants to pay the costs and have the stay lifted. Instead, they started a similar but not identical case against the solicitors who then sought a stay of the new claim on the basis that it was an abuse of process. Though not identical, the Court of Appeal found that it was substantially the same. Continue reading “The finality of the proceeding stayed pending further order”
Coke-Wallis v Institute of Chartered Accountants In England and Wales  EWCA Civ 730 considered the application of principles of res judicata and autrefois acquit (the criminal version of the same principle, an aspect of double jeopardy) to disciplinary ‘prosecutions’. It did so in the context of the disciplining of accountants. The relevant scheme made a conviction conclusive evidence of an act likely to bring the accountant, and the profession, into disrepute. The conviction itself, and the conduct of which it was conclusive evidence were each able to justify disciplinary sanction. Mr Coke-Wallis was convicted of a crime but the disciplinary prosecution brought on that basis failed unexpectedly. So the regulator charged him again, by reference to the conduct which was the subject of the conviction. The English Court of Appeal held that the principles of res judicata, or autrefois acquit (which it seemed to assume applied to disciplinary proceedings) were not infringed, because the two charges were separate and distinct. That left open the question that though there was no legal bar to the second prosecution, nevertheless it constituted an abuse of process. After analysis, no abuse was found. English solicitors Shepherd + Wedderburn have kindly prepared a little case note. Justice Gillard’s decision on a similar problem in Kabourakis v Medical Practitioners Board of Victoria  VSC 493 is the subject of this post.
The Institute does not always seem to get everything perfect. Take for example, the Queen’s Bench Division’s description of another prosecution, in Gorlov, R (on the application of) v The Institute Of Chartered Accountants In England And Wales  EWHC Admin 220, justifying an exceptional award of costs against a professional disciplinarian: Continue reading “Double jeopardy and disciplinary proceedings”
An article by Peter Munro in The Age provides a surprisingly sophisticated analysis of the ‘problem’ of vexatious litigants. The unrepresented obsessed do pose problems for the administration of justice. Consider the web of litigation sketched out in Mentyn v Law Society of Tasmania  TASSC 24. Continue reading “Vexation”
I was drinking beer at The Peacock the other afternoon, and a VCAT member was muttering about the Supreme Court overturning VCAT decisions on the basis that applications for adjournment were not granted when they could have been cured by an order for costs. The suggestion was that the Court may have overlooked the fact that no costs are awardable in certain classes of cases. The other point was that in many lists, like the civil list, members are expected to churn through a case an hour, without the assistance of counsel on which decision makers generally rely on so heavily.
My conversation came back to me while reading HL v Fahey  VCAT 2400, a case about Ms Fahey’s dissatisfaction with a bill for $1,199. Ms Fahey successfully sought 2 adjournments. The first time, she had to go to Norway for a qualifying competition for the Olympics. Her game is dressage. The second time, she simply wrote in sick. The third time, she attached a sick note from a doctor. VCAT told her that administrative adjournments were over and told her to come to the hearing and make her application there, and to be ready to proceed if she failed. She did not turn up, and so an order was made against her. She sought a review, akin to an application to set aside a default judgment. She sent a fax to VCAT at 9.36 a.m. before the 10 a.m. hearing in which she said she was ‘unable to attend today’s review hearing due to extreme illness’, and concluded ‘I will contact you again in the future to arrange a new review date.’ That attempt to direct the Tribunal to adjourn failed, and Senior Member Howell heard the case in her absence, saying: Continue reading “VCAT runs out of patience with serial adjourner”
In Chen v Chan  VSCA 2, President Maxwell and Justice of Appeal Redlich dismissed an application by the appellant for an order enjoining the respondent’s solicitor and counsel from acting in the appeal. The applicant alleged that there had been wrongdoing by the respondent’s lawyers at the trial. In fact that was one of the grounds of appeal. It is certainly the case that where a lawyer is to be a witness, he ought not continue to act, especially as an advocate. But their Honours held: Continue reading “Application by appellant to remove respondent’s trial counsel from appeal dismissed”
It took an awfully long time — almost 15,000 words — for Justice Hansen to state the bleeding obvious in Attorney-General for the State of Victoria v Shaw  VSC 1148, but in the circumstances, I well understand why his Honour desired to appeal-proof his judgment. Mr Shaw, who as a newly annointed vexatious litigant, must obtain leave of the Supreme Court before commencing proceedings, may be Victoria’s most unsuccessful litigant. He unsuccessfully sued (in many cases as private prosecutor of serious criminal offences) the Chief Magistrate, Masters Wheeler, Evans, Kings and Cain and Justice Smith of the Supreme Court, the Court of Appeal’s President Winneke, Justices of Appeal Brooking, Charles, Buchanan, and Chernov, the High Court’s Justices Kirby, Callinan, Crennan, Gummow, Heydon, Gleeson, and Hayne, the Commonwealth Governor-General, the Victorian and Commonwealth Directors of Public Prosecutions, the Grand Master of the United Grand Lodge of Victoria, Rob Hulls and the Attorney-Generals of Tasmania and NSW, and Julia Gillard. He sued Kim Beazley and John Howard for treason and misprision of treason. He had been declared vexatious already in Western Australia, and took to suing a similar cast of Western Australians in Victorian courts — for an enumeration of these actions, see the judgment…
Of course there were the predictable forms of hopeful litigation, such as the defence of speeding charges on the bases that ‘the Magistrate’s [sic.] Court at Werribee was never legally Constituted, because Victoria does not have a valid Constitution,’ and ‘The Queen of England has abdicated her role as DEFENDER OF THE FAITH, that faith being Christian, by abdicating to the foreign power of Freemasonry’. But one must admire the chutzpah in the attempt to convoke a grand jury under s. 354 of the Crimes Act, 1958 to rule on Mr Shaw’s arguments that: Continue reading “Private prosecution of PM for treason leads to vexatious litigant status”
Skinner’s Case  VCAT 917, a claim against a leading labour law firm, was for some reason heard in VCAT’s Civil List. A more likely list would have been the Legal Practice List, given that it was a professional negligence claim, albeit one pleaded under the Fair Trading Act, 1999 and the Trade Practices Act, 1974. But Mr Skinner, a self-represented litigant with an enthusiasm for internet research and a copy of Pizer’s Annotated VCAT Act under his arm, came up against the Acting President, Judge Bowman, who turfed his $400,000+ claim out as doomed to fail and as an abuse of process. Yet another failed regretted settlement claim bites the dust. The only pity is that this proceeding was allowed to wallow for 2 years, while repeated directions of the Tribunal requiring witness statements and an intelligible statement of claims against the solicitors were ignored. The solicitors did not claim advocates’ immunity in respect of the suit, despite the availability of such a plea: Biggar v McLeod  2 NZLR 9; O’Connor-Sraj v Lawrence  VCC 1093. Continue reading “Summary dismissal in a solicitors’ negligence claim at VCAT”
The latest and possibly last chapter in the tribulations of Victoria’s most senior female silk is to be found in M v VCAT  VSC 89, a decision of Justice Mandie. The barrister was charged on 4 July 2005 with 24 charges of misconduct, and ended up after a hearing of the first half of the charges with a finding of only 4 counts of unsatisfactory conduct. All but one of the second half were abandoned, but the Bar, as prosecutor, sought to amend the last remaining charge so as to substitute an allegation of unsatisfactory conduct for the original charge of misconduct. VCAT found it had no power to grant leave to amend a charge, and the barrister convinced the Supreme Court to stay the hearing of the last charge as an abuse of process, VCAT having refused to do so. It was an abuse because the Bar wished to proceed with the misconduct charge not so as to make out an allegation of misconduct, but so as to provide a vehicle for a finding of unsatisfactory conduct under a statutory power which empowered VCAT to make a finding of unsatisfactory conduct after hearing a misconduct charge. Justice Mandie found:
‘ … It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge [i.e. unsatisfactory conduct]. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.’ Continue reading “Misconduct charge no. 21 against Victorian silk stayed as abuse of process”
In M v VCAT  VSC 89, discussed in the next post, the Supreme Court of Victoria’s Justice Mandie provided a useful treatment of the law relating to abuse of process as applied to disciplinary tribunals. It is set out below in full. Continue reading “Abuse of process and disciplinary tribunals”
I have been involved in teams of litigators on the biggest cases around with dedicated IT people fixing everything IT related, and consider myself to be relatively well aware of the perils of electronic documents. But some metadata slipped out with a document not so long ago, a comment which I could not see in the Word view mode I was in before I emailed it. It probably went unnoticed by my opponent, but a footer in a word document resulted in BHP — one of Australia’s then biggest companies — paying hundreds of millions of dollars to settle the Ok Tedi litigation after being convicted of contempt of court (see below for Julian Burnside‘s account of it). (The conviction was later set aside, but, alas, too late.) Here is a useful article from the American Bar Assocation which summarises the perils of not expunging the metadata generated by use of Word’s track changes feature of draft documents, with lots of links to technical help on the issue. And here is an article from www.discoveryresources.org linked to from that article which explores the issues well too. But now, back to the Ok Tedi Case, probably the best metadata horror story out there, but, I think little known outside Melbourne legal circles: Continue reading “A good summation of Microsoft Word metadata issues for lawyers”