VCAT’s Civil List engenders “a sea of misunderstanding”

Coggin’s Case [2007] VCAT 266 is an illustration that the merger of the former Legal Profession Tribunal with VCAT is still being worked out. Senior Member Howell described what had been engendered as ‘a sea of misunderstanding’. Unless you are interested in the procedures of VCAT’s Legal Practice List, you will find this post very boring. Continue reading “VCAT’s Civil List engenders “a sea of misunderstanding””

Misconduct charge no. 21 against Victorian silk stayed as abuse of process

The latest and possibly last chapter in the tribulations of Victoria’s most senior female silk is to be found in M v VCAT [2007] 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:

‘[58] … 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”

Solicitor-executor’s work not legal work

Patterson v S [1998] VLPT 11 is a decision of the Legal Profession Tribunal dealing with a sole practitioner who was the executor of a priest’s will. It held that executors’ work carried out by an executor who happens to be a solicitor is not legal work, and so fees for the work were not within a clause in the will entitling professional executors to charge their “usual or reasonable charges”. Continue reading “Solicitor-executor’s work not legal work”

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”

Res judicata: VCAT strikes out case previously decided by Legal Profession Tribunal

Wells’s Case [2006] VCAT 2370 (Senior Member Howell, 16 November 2006)

I have always thought I was the only person in the world who held the view that an unsuccessful claimant in the Legal Profession Tribunal was not allowed, despite s. 133(2) of the Legal Practice Act, 1996 to have a second go in the courts, even though a successful claimant was allowed to do so. I probably wasn’t, since that’s what Senior Member Howell (formerly the Tribunal’s Registrar) decided in VCAT the other day, and he has probably always thought the same way. Continue reading “Res judicata: VCAT strikes out case previously decided by Legal Profession Tribunal”

Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution

In B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA), the majority criticised the Chairman of the Full Legal Profession Tribunal for retorting to the solicitor’s submission that “These proceedings are a full time occupation for me” with “Occupation or obsession, Mr [G]?”. They said it was taken, with some justification, as a term of abuse. But they found that, and some other comments, raised no case of apparent bias such that the Chairman should have excused himself. But the majority said at [62] that: Continue reading “Chairman, Full Legal Profession Tribunal criticised for abusing solicitor in misconduct prosecution”

Procedural fairness: “Murray letters” considered by Victorian Court of Appeal

B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)

The Law Institute corresponded with the solicitors in this matter between 1998 and October 2000. The CEO Ian Dunn, wrote what is known in the game as “a Murray letter” on 16 October 2000. That is a letter summarising the tentative conclusions of an investigation giving a practitioner a final opportunity to comment before a final decision to lay a charge. The two solicitors in this case were given 7 days in which to respond. One of them replied at length and indicated he did not desire an extension of time, the other did not request an extension. Later, their lawyers took the point that the charge was invalid and the Tribunal’s jurisdiction not properly invoked. The Tribunal found it had jurisdiction. The Court of Appeal had no jurisdiction to entertain an appeal in relation to this aspect of the Tribunal’s decision because, it found, the finding that sufficient time had been afforded was a question of fact, and it had jurisdiction only to hear appeals on a question of law. Nevertheless, the majority ventured some dicta. Continue reading “Procedural fairness: “Murray letters” considered by Victorian Court of Appeal”

The great delegation debacle: B (A solicitor) v Victorian Lawyers RPA Ltd

B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)

The Law Institute of Victoria Limited used to be named Victorian Lawyers RPA Ltd. It, and the Victorian Bar, were the only two RPAs (Recognised Professional Associations) set up under the Legal Practice Act, 1996, which allowed for an unlimited number of RPAs. Under s. 313 of that Act, it was entitled to delegate in writing powers and functions to employees. If it did not do so, its board (styled “the Council”) would have had to make every decision.

The Law Institute charged two solicitors with misconduct. Six months later, it sought leave to withdrew the charges, on the basis that its “failure to follow strict process” had resulted in the charge laid being a nullity. The Tribunal allowed the Law Institute to do so, refused to dismiss the charges, and refused to order costs.

The Law Institute’s Council minuted a recommendation that its powers under s. 151, the provision requiring the RPA to take certain courses at the end of a disciplinary investigation, and giving it certain discretions, be delegated to its CEO, Ian Dunn. At the end of the minutes, the word “confirmed” was typed, and they were signed by the Chair.

Pursuant to s. 151, Dunn signed new charges against the same solicitors, purportedly as delegate of the Law Institute. The Court of Appeal found that the Legal Profession Tribunal had erred in finding it had jurisdiction. It found that a written minute of an oral recommendation to delegate a power was not a written instrument of delegation. Because the person who signed the charge had no authority to do so, the Tribunal’s jurisdiction was not properly invoked, and it had no jurisdiction. The Court of Appeal ordered the charges dismissed.

For the peak lawyers’ body in the State practising under the business name “Professional Standards” it was an embarrassing lapse which threw the world of professional discipline into chaos for months (Ormiston JA observed at [3] that he found it “surprising that a body made up of qualified and experienced lawyers should take a course as was here adopted without there having been some explicit authority which would justify their actions”.) Because the procedural defect did not apply only to the particular delegation in question, huge numbers of decisions stood amenable of being set aside, or ignored (since an order made by a statutory Tribunal without jurisdiction need not be obeyed). Urgent retrospective legislation had to be rushed through parliament.

The architects of this most exquisitely technical of victories were Terry O’Conner and barristers he retained, Rod Garrett QC and Bob Miller.
Continue reading “The great delegation debacle: B (A solicitor) v Victorian Lawyers RPA Ltd”

Fees reduced for unconscionability where Legal Practice Act costs provisions did not apply

In Wilkins’s Case [2006] VCAT 2199, Mr Butcher was faced with an application under the Fair Trading Act, 1999 by a client who sought to avoid payment of two accounts in circumstances described in the previous post. The application was brought under the Fair Trading Act, 1999, though which provisions is not clear from the very brief reasons. The reasons are especially brief considering this is the first time to my knowledge that unconscionability provisions have been relied on to diminish legal fees payable by a solicitor because of a costs disclosure default. The solicitor sent a letter to the prospective client which set out the solicitor’s hourly rate but did not give an estimate of total fees. Mr Butcher found at [17]:

“The document … does not comply with s 86 of the Legal Practice Act 1996, which applied at the time. This dispute is not brought under that Act and the situation is that in relation to a dispute under that Act, I am empowered to reduce bills of costs where there has been a failure to comply with s 86 having regard to the seriousness of the failure to provide information. However, this dispute is brought under the Fair Trading Act 1999. I do, however, consider that an examination of whether the appropriate regulatory regime has been complied with is appropriate in deciding whether under the Fair Trading Act 1999 a determination should be made in favour of the applicant. There should have been more extensive advice given by [the solicitor] in relation to legal fees. It was practicable to do so . The failure to give this advice is unsonscionable.”

He knocked about 7.5% off the bill, rounding it down from $3,874 down to $3,000. The justification for this course is explained in the next post.

The XY saga of a formerly mentally ill applicant for admission

It is an intriguing saga which is recounted in Board of Examiners v XY [2006] VSCA 190, involving the application for admission to practice by a woman with a criminal record and a history of mental illness. According to psychiatrists, by the time of an appeal to the Supreme Court, her mental illness was over. So the Court overturned the Board of Examiners’ original decision, though acknowledging it had been correct at the time. The Court of Appeal recounted the facts (but did not reproduce the intriguing fact noted by the trial judge that much of the self-harm inflicted by the woman occurred in the toilets of court buildings in the city): Continue reading “The XY saga of a formerly mentally ill applicant for admission”

Legal Profession Tribunal not bound by doctrine of precedent

If authority were needed for this proposition, it is to be found in B’s Case [2004] VLPT 8 where Mr Howell said:

“a member of a tribunal is not bound to follow a decision of a tribunal made by a member of the same standing. Of course, the previous decision should be carefully considered, and it might be regarded as persuasive and followed, but in the interests of certainty in the law it should not be followed if it is clearly wrong. The aim is to correct errors, not to perpetuate them. If it becomes necessary to resolve a conflict between different decisions, that conflict can be resolved by an appeal, or by a decision of a superior court or tribunal in another case, or by amending legislation.”

Woman bankrupted because of solicitor’s failure to attend court suffered no loss

Mitchell’s Case [2005] VLPT 1

A client’s claim for compensation in a pecuniary loss dispute failed because she adduced no evidence that had she not been declared bankrupt by reason of her solicitor’s negligent failure to turn up to court, she could have avoided bankruptcy on any better basis than she did by paying out the full amount owing to creditors. She was criticised for not applying to set the bankruptcy aside before suing the solicitor. The decision is a shining example of the capacity of causation defences to succeed even in the face of plain negligence. Continue reading “Woman bankrupted because of solicitor’s failure to attend court suffered no loss”

Multiple claims and the $15,000 limit on power

Tweed on behalf of National Exchange Pty Ltd v Griffin Law Firm [2006] VCAT 1305

A solicitor was retained to pursue parties for breaches of contract involving small sums. He fell into dispute with the client in relation to fees in 376 such matters. Mr Howell found there were 376 separate disputes each for less than the jurisdictional limit so that he had jurisdiction, and refused an application for dismissal under the power to dismiss disputes which would be more appropriately heard by a court. Continue reading “Multiple claims and the $15,000 limit on power”

Open offer under cover of denial of negligence averts hearing

Chen’s Case [2006] VCAT 748 (Senior Member Howell): costs; s. 132(b); s. 133(2); s. 407 (see the associated disciplinary decision here)

A solicitor averted being found negligent by openly offering to pay the claimant the maximum amount VCAT could award under cover of a denial of negligence. Mr Howell found that it would not be “fair” to put the solicitor through a hearing only to determine negligence. Continue reading “Open offer under cover of denial of negligence averts hearing”

Costs of prosecutor’s in-house lawyers

Law Institute of Victoria v SA [2006] VCAT 742

A solicitor’s prima facie sound argument — that the indemnity principle at the heart of the common law’s costs jurisprudence meant that the Law Institute should not be entitled to its in-house solicitor’s costs of the prosecution — failed. The reason: because the LIV was engaging in a statutory duty. Continue reading “Costs of prosecutor’s in-house lawyers”