2nd edition of Professional Liability in Australia reviewed

I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.

It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.

Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.

Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.

Continue reading “2nd edition of Professional Liability in Australia reviewed”

VCAT does not invoke Fair Trading Act to cure want of Legal Profession Act jurisdiction

In Huang’s Case [2007] VCAT 1692, Senior Member Howell was presented with a case brought by a man who had initiated the Legal Profession Act, 2004‘s lawyer-client costs dispute process by lodging a civil complaint with the Legal Services Commissioner. The scheme of the Act is that the Commissioner tries to settle the dispute, and if she can’t, she gives the punter a ticket to take the dispute to the next level, VCAT’s Legal Practice List: s. 4.3.7. Mr Huang jumped the gun, and didn’t wait to get his ticket before commencing VCAT proceedings.

Senior Member Howell dismissed the dispute for want of jurisdiction. Because of the implied repeal of the (Victorian) Legal Profession Act, 2004 insofar as it relates to many aspects of solicitor-client costs charged in Family Court proceedings by the (Commonwealth) Family Law Act, 1975, there was no discussion of recognising a jurisdiction under s. 108 of the Fair Trading Act, 1999 and using that to establish jurisdiction. Very appropriate too, since it would be logical that the Fair Trading Act, 1999 is no less impliedly repealed in its application to lawyer-client costs disputes which are governed by the Family Law Act, 1975 than the Legal Profession Act, 2004. Continue reading “VCAT does not invoke Fair Trading Act to cure want of Legal Profession Act jurisdiction”

Tariff up for not responding to demand for information by Bureau de Spank

In Legal Services Commissioner v MG [2007] VCAT 1491, the lawyer failed to respond to letters demanding a written response to a complaint by another lawyer. The Commissioner wrote on 18 January 2007, 16 February 2007, 23 March 2007 and 1 April 2007. In other words, a complaint, quite possibly lodged last year, has languished uninvestigated for 8 months. The lawyer proffered no explanation for his breaches of the Act, so that Member Butcher decided, quite appropriately, that this persistent silence by the lawyer amounted to professional misconduct rather than unsatisfactory professional conduct. Though the dichotomy between wilful and innocent breaches of the Act which used to distinguish unsatisfactory conduct from misconduct under the old Act has been dispensed with, Mr Butcher still found those concepts of assistance in deciding whether this was the lesser or the more serious of the two conduct offences.

The fine was $1,500 and the costs $2,500. In the period to the end of the financial year before the one just gone, the going tariff seemed to be $500 and $1,000 in costs, as I noted in an earlier post.

MG gets the prize for first misconduct ‘conviction’ under the Legal Profession Act, 2004 (so far as I know), but not the first ‘conviction’; another solicitor was convicted of unsatisfactory conduct on a similar charge a week or two ago.

The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act

In Ralph Cosentino v MY [2007] VCAT 1319, Member Butcher continued a tradition of statutory interpretation of a little technical provision about when service of statutory notices is effective. That tradition, of the Legal Profession Tribunal and its predecessors, has always troubled me. Though it does not seem to have been cited by counsel,  a recent decision of a Deputy President of VCAT took the opposite approach: Vitesnik v Macedon Ranges SC [2007] VCAT 598. There is a Legal Profession Act, 2004 notice issued by the Legal Services Commissioner within 60 days of receiving which an applicant must start their VCAT case.  Mr Butcher concluded that he would have found that Mr Cosentino did not ‘receive’ it on the day when the Act directed that it was to be ‘taken to have been given to him’. But the question never quite arose, as Mr Butcher used a VCAT Act, 1998 power to excuse the applicant’s use of the wrong originating process and concluded that the proper characterisation of things was that the application, though defective, had been made within time anyway, so that it was appropriate to excuse the procedural defect and recognise the case as having been started within time. Warning: this is a particularly boring decision unless you are a user of VCAT’s Legal Practice List. Continue reading “The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act”

Victoria Marles to speak on progress towards national profession

The Legal Services Commissioner, Victoria Marles, is to speak at the Australian Legal Practice Management Association’s conference in Melbourne on 26 October 2007. I feel for her, with the 4 p.m. Friday shift. With her NSW counterpart Steve Mark, she will speak on what is left to do in creating a truly national profession. Imagine trying to fit all that in on a Friday afternoon, just before cocktails. The conference brochure provides the following profile of the Commissioner: Continue reading “Victoria Marles to speak on progress towards national profession”

Legal Services Commissioner publishes annual report

The Legal Services Commissioner’s website is growing some content. Her annual report for the part-financial year ending 2006 is published there. In summary:

  • For those who enjoy the suffering of others, commencing at p. 22 there is a list of all the adverse disciplinary findings made by VCAT’s Legal Practice List, and it names the practitioners involved;
  • The Commissioner’s office has 3 executives in addition to Victoria Marles: Janet Cohen (formerly the Deputy Legal Ombudsman), David Forbes, and Diana Gillespie; 9 legal staff 2 of whom are part time; (2 out of the 13 mentioned are blokes) and 19 administrative staff;
  • She received 1,218 complaints under the new Act (6 a day), of which 664 were only disciplinary (55%), 310 were only civil (25%), and 244 were both (20%) (all of the complaints figures below are only about the new Act complaints received, except where indicated);
  • Only 33 were against barristers (3%);
  • 238 involved a costs dispute (20%), a surprisingly low figure, especially given that 553 of the complaints were about costs or bills (45%);
  • Only 117 involved a pecuniary loss dispute (10%) which shows that two-thirds of the 322 complaints characterised as being about “Negligence — including bad case handling and advice” were dealt with as disciplinary complaints or costs disputes which is most surprising;
  • Only 719 were handled by the Commissioner (59%) — the rest were referred to the Law Institute and the Bar for investigation and recommendation as to ultimate decision to be made by the Commissioner;
  • 67% of those delegated to the Law Institute involved a disciplinary complaint;
  • 14% were about wills and estates, 14% about conveyancing, 18% about family law, and only 5% about crime;
  • 6% were about conflicts;
  • There were 3 complaints of sexual impropriety;
  • There were no ‘other genuine dispute’ within the definition civil disputes in s. 4.2.2(2) of the Legal Profession Act, 2004;
  • No prosecutions were brought;
  • Not a single finalised disciplinary complaint was successful (and only 1 out of the 100 old Act complaints succeeded — it resulted in a reprimand);
  • There were 3 FOI applications to the Commissioner; and
  • The going tariff for a breach of the obligation to deliver up documents within time pursuant to the Commissioner’s power of compulsion seems to be a $500 fine and costs of $1,000.

The Office had revenue of $3.4 million (almost all from the Legal Services Board) of which $1.3 million went on staff, including training (an annualised average of $73,300 per employee, some of whom are part-time, but it gets a little complicated because the Commissioner spent $205,000 on temps), $1.1 million went to the Law Institute for functions the Commissioner delegated to it (there is a list of all delegations on p. 20) and $150,000 to the Bar for the same thing.

Astonishingly, 89% of all disciplinary complaints finalised were summarily dismissed pursuant to s. 4.2.10 of the Legal Profession Act, 2004. Almost 1 in 6 was chucked within 30 days, and almost 9 in 10 within 60. To be fair, this may represent the dross which has been sifted out, since 60% of the complaints received during the reporting period were still open at the end of the financial year, and 60% of them had been open for 2 months or longer. I say ‘astonishingly’ because I perceive it to be a radical departure from the practice of the Commissioner’s predecessors. In general, though, it is a good thing if the Commissioner uses her office’s limited resources to deal doughtily with the complaints which suggest conduct conducive of condine condemnation, while giving the drossmongers and feewhiners the short shrift they often deserve.

I saw the other day a set of circumstances which was unfortunate, and which I hope is not too often replicated. The Commissioner characterised a complaint as a pecuniary loss dispute (one of the species of civil dispute) and a conduct complaint. The particulars of the complaint read, in substance — “See the attached Family Court affidavit”. Rather hastily after the receipt of the complaint, the Commissioner exercised her discretion to bypass the dispute resolution procedures with which she is tasked in relation to civil disputes by giving the client a ticket to go off and agitate her professional negligence claim in VCAT. She referred to s. 4.3.6 of the Legal Profession Act, 2004 which says she can do so if she considers the dispute unsuitable for her to attempt to settle. The matter was referred to VCAT’s Legal Practice List. Then, the Commissioner realised that because the exact subject matter of the complaint was before the Family Court she had no power to deal with the complaint, which she dismissed pursuant to the power in s. 4.2.10(1)(e) of the Legal Profession Act, 2004, which says ‘The Commissioner may dismiss a complaint if— (e) the complaint is not one that the Commissioner has power to deal with’. Yet she did not withdraw the ticket she had mistakenly given to the c lient to refer the purported complaint to VCAT insofar as it amounted to a civil dispute in the belief that she did have power to deal with the complaint.

The Commissioner settled 10% of civil disputes. She let 5% through to VCAT’s pecuniary loss dispute jurisdiction, which would explain why it’s been quiet down in the Legal Practice List. That means 85% never went anywhere for various reasons. She summarily dismissed 53%. She refused to extend time 18 times.

Of the complaints summarily dismissed, 41% were dismissed for being frivolous, vexatious, misconceived or lacking in substance. 9% were dismissed because the Commissioner formed the view the complaint required no further investigation. One-third were dismissed on the basis the Commissioner did not have jurisdiction.

Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor

The last post referred to part 1 of the last chapter of an intriguing saga. The second and final part of that chapter is the decision on costs: PJQ v Law Institute of Victoria (No. 2) [2007] VSCA 132. The President of the Court of Appeal rejected the following submissions by the Institute:

  • that the Institute was just a contradictor, assisting the Court by ensuring that it had two views to choose from, and was akin to an amicus curiae;
  • that it would have been entirely inappropriate for a professional regulator such as the Institute to consent to the relief sought by the appeal;
  • that the cases which say that ‘costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely’ are relevant (‘this submission is entirely misconceived. The Institute is not a tribunal. Rather, it appears before the Tribunal as a party. Its function is that of prosecutor. No question arises here of the Tribunal’s costs, since the Tribunal did not appear.’);
  • it was relevant that parliament had directed that costs of the Full Tribunal hearing were not to be awarded against the Institute save in exceptional circumstances (s. 162, Legal Practice Act, 1996; see now Victorian Civil and Administrative Tribunal Act 1998, Sch 1 cl 46D(3));
  • because it made no submissions as to penalty, the Institute did not lead the Tribunal into error. Continue reading “Costs ordered against Law Institute in unsuccessful opposition to appeal against sentence of solicitor”

So-called lawyer to the underworld fails in challenge to ticket non-renewal

Melbourne’s best known female criminal lawyer was convicted some time ago of contempt of court for refusing to answer questions on oath in a Supreme Court murder trial of her husband’s murderers: as I reported here. She has sought review of that decision in VCAT, and sought judicial review from the Supreme Court as well. That latter course failed today, partly because of the availability of her remedies in the VCAT proceedings, which may still result in the renewal of her practising certificate. Until that case is decided, she is entitled to keep practising. See The Age‘s article here, and Justice Kevin Bell’s judgment in ZGW v Legal Services Board [2007] VSC 225 here. It begins by sketching out the background issues and the questions for determination in the case:

‘1 The plaintiff, a young and intelligent solicitor, was working hard in a firm specialising in criminal law. She met a man who was one of its clients and the two formed a relationship. They were living together as husband and wife when he was murdered. Continue reading “So-called lawyer to the underworld fails in challenge to ticket non-renewal”

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””

VCAT’s jurisdiction over post-proceedings Family Law fees

Senior Member Howell determined today in M v JC Lawyers [2007] VCAT 273 that VCAT had jurisdiction to entertain a costs dispute about solicitor-client fees of post-proceedings negotiations under the threat of mutual applications to reopen under the change of circumstances provisions the final orders of the Family Court made 9 years previously. Continue reading “VCAT’s jurisdiction over post-proceedings Family Law fees”

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”

Cross-fertilisation of VCAT jurisdiction under separate enabling acts

In Director of Housing v Young [2002] VCAT 227, Deputy President Levine decided that a $14,000 residential tenancy claim of a kind in which VCAT’s jurisdiction was limited to $10,000 could be brought pursuant to the Fair Trading Act, 1999 as what is now described as a “consumer-trader dispute” because the Fair Trading Act, 1999 was enacted after the Residential Tenancies Act, 1997. He also decided that a case brought under one Act in the associated List may plug gaps in that List by invoking jurisdiction in another Act associated with another List and the whole lot may be heard at once by a member of the first List. Continue reading “Cross-fertilisation of VCAT jurisdiction under separate enabling acts”

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”

Roisin Annesley’s Victorian Barristers’ practice guide

The Bar has produced a practice guide. It is a great achievement and stands as a beacon for the Law Institute’s future efforts at promulgating knowledge of the practice rules. The Bar actually has something called the Professional Standards Education Committee. Written by Roisin Annesley, it was launched by Victoria Marles, the Legal Services Commissioner on 18 October 2006, and distributed free to every member of the Bar. Annesley has done a lot of work as Counsel Assisting the Legal Profession Tribunal (and continues to do occasional work assisting the Legal Practice List at VCAT). A doyen of professional discipline, Paul Lacava SC, and a judge who has excoriated Professional Standards, Justice Gillard, are credited with substantial involvement. It has chapters on: Continue reading “Roisin Annesley’s Victorian Barristers’ practice guide”

Amendments to Legal Profession Act, 2004

The Justice Legislation (Further Amendment) Act 2006 No. 79 (Vic) was assented to on 10 October 2006 and the relevant part came into effect the following day: s. 2(1). Part 13 amends the Legal Profession Act 2004. The relevant purpose is stated in s. 1(k):

“(k) to amend the Legal Profession Act 2004—
(i) to reflect amendments to the national model provisions for the regulation of
the legal profession;
(ii) generally to improve the operation of the Act”.

Part 13 says: Continue reading “Amendments to Legal Profession Act, 2004”

VCAT construes Legal Profession Act’s transitional provisions: “matter”

Alessi’s Appeal [2006] VCAT 1714

What could be more exciting than 8 pages of closely typed reasons for decision about a jurisdiction challenge based on fine dissection of the transitional provisions in the Legal Practice Act, 2004? If that pumps your yams, read on. Sub-clause (2) of clauses 8.2 and 8.3 of the transitional provisions provide that if a matter was pending in the Legal Profession Tribunal on 12 December 2005, then VCAT is to hear and determine it as if it were a proceeding commenced in VCAT, and the repealed old Act continued to apply in respect of the matter (both substantively and procedurally). The Clients said an appeal was a new matter, and since no appeal was pending on 12 December 2005, the fact that the decision appealed against was pending on that day did not attract the operation of the transitional provisions. The Clients unsuccessfully argued that the only right of appeal against decisions made in matters pending on 12 December 2005 but determined after that date was under the VCAT Act, 1998, to the Court of Appeal. A three member panel of VCAT configured similarly to the old Full Legal Profession Tribunal (Judge Bowman, a solicitor member and a lay member) decided it had jurisdiction. The “matter” was the application to set aside the costs agreement, the ancillary matter of the costs of those proceedings, and any appeals from the substantive decision or the costs order. Since that matter was pending on 12 December 2005, the transitional provisions were attracted, and the Legal Practice Act, 1996‘s procedure for appeals in applications to set aside costs agreements applied, so that the bench of three VCAT members had jurisdiction to hear an appeal according to the procedures of the old Full Legal Profession Tribunal. Continue reading “VCAT construes Legal Profession Act’s transitional provisions: “matter””

Proposed amendments to the Legal Profession Act, 2004 (Vic.)

Here is the bill proposing the second round of amendments to the Legal Profession Act, 2004 (Vic.), the Justice Legislation (Further Amendment) Bill, 2006 (Vic.). There are substantial changes to practising certificates and costs disclosure requirements on which I will report when I have digested them.
And the second draft of the National Model Provisions has been released by the Law Council (if you follow the link you need to scroll to the bottom of the page). I got a bit worried when I heard that there was going to be a renumbering of the Acts, but apparently everyone else is going to follow Victoria’s numbering so I will continue to beaver away at understanding the complexity occasioned by the simplification process.

The new r. 3.4.3, Legal Profession Regulations, 2005 (Vic.)

Section 15 of the Legal Profession (Amendment) Regulations, 2007 inserted a new s. 3.4.3 into the Legal Profession Regulations, 2005 (Vic.). This is it, with my parenthesised interpolations:

3.4.3 Interest on unpaid legal costs

(1) This regulation is made for the purposes of section 3.4.21(4) of the [Legal Profession Act, 2004] and prescribes the rate of interest in excess of which a law practice may not charge interest under section 3.4.21 of the Act or under a costs agreement.

(2) The rate for the period commencing on and including the first commencement day and ending immediately before the second commencement day is the rate fixed under section 2 of the Penalty Interest Rates Act 1983 as at the relevant date.

(3) The rate for the period commencing on and including the second commencement day is the rate that is equal to the Cash Rate Target as at the relevant date, increased by 2 percentage points.

(4) In this regulation—

Cash Rate Target means the percentage (or maximum percentage) specified by the Reserve Bank of Australia as the Cash Rate Target;

first commencement day means the day on which regulation 15 of the Legal Profession (Amendment) Regulations 2007 comes into operation [r. 3(2) says reg 15 comes into force 6 months after the rest of the Regulations; r. 3(1) says the rest come into operation on the date they are made, which was 8 May 2007, so the first commencement day is 8 November 2007];

relevant date means the date the bill was issued by the law practice concerned;

second commencement day means the day that is 28 days after the first commencement day [6 December 2007].’