The Federal Court heard a case about this scratchie: Kuzmanovski v New South Wales Lotteries Corporation  FCA 876. Whether the plaintiff had a $100,000 winner or not depended on whether in Australia ‘bathe’ means ‘swim’. Did the picture of the man doing freestyle at C1 show a man who was bathing, as the plaintiff was sure of at the moment he experienced an ‘explosion of elation’? The plaintiff hired senior counsel to argue the case for him. Justice Rares agreed with the plaintiff, and ordered contractual damages of $100,000 plus $28,000 in interest since 2007. Had the plaintiff been limited to damages for disappointment, he would have ordered $20,000. One senses that Justice Rares enjoyed writing the judgment. To add insult to injury, the Kuzmanovskis got their costs on an indemnity basis, based on their pre-proceedings offer to accept $80,000 in settlement of their claims:  FCA 1016.
NSW judges have suggested in the past that the Macquarie Dictionary is the most authoritative. It suggested that the use of ‘bathe’ to mean ‘swim’ was ‘chiefly British’, and the lottery company urged that bathe should not be interpreted in Australia to mean swim. But Justice Rares held that what the word meant was up to him, as the arbiter of fact, and though dictionaries are useful tools, they are only that, and considered all the definitions of reputable dictionaries together. The relevant part of the judgment is as follows: Continue reading “Which dictionary is the authoritative arbiter of the meaning of words in Australia?”
The rather beautiful English blogger, Afua Hirsch, at once a barrister and a Guardian correspondent, has posted a beautifully written obituary to Lord Bingham, pictured. It is definitely a blog post, rather than something more formal belonging to the print version of a newspaper, and it is a fine example of its form, like much to be found in The Guardian, all the way down to Zia Mahmood’s bridge column. I commend it to you. Apologies to The Guardian for the theft of David Levene’s photograph.
Even judges of appellate courts and legal regulators get it wrong. Either I am getting grumpier or the error is becoming more common:  NSWCA 278;  NSWCA 379;  NSWCCA 6. Even Chief Justices get it wrong:  NZSC 55 at .
‘Practice’ is a noun. ‘Practise’ is a verb. So:
‘The practitioner’s firm enjoys a diverse practice across the areas traditionally within the competence of the High Street solicitor. Formerly, she practised in the Crown Law Department before moving to Abu Dhabi and practising as a sole practitioner.’
If you know the difference between a noun and a verb, it is helpful to remember that ‘ice’ is a thing, and so a noun. Continue reading “Practice or practise? Licence or license?”
Given how often companies execute documents, and the consequences of getting it wrong, I have always found the law on the subject weirdly complicated. Perhaps that’s just because I’m a litigator and never quite cottoned on to a commercial lawyer’s basic skill. But a beautifully written Clayton Utz file note by John Elliott, about Vero Insurance Ltd v Kassem  NSWSC 838 winningly entitled ‘Sometimes You Do Have to Sweat the Small Stuff” suggests that there may be others with difficulties in this area of the law. Vero tried to vote at a creditors meeting (an insolvency law procedure) by a proxy signed by its ‘Executive Director’. That did not comply with s. 127 of the Corporations Act, 1991 which said: Continue reading “Execution of documents by companies”
I turned up to run a trial recently in which orders had been made for witness statements by consent, and witness statements had been filed and served. The trial judge simply advised he would not stand for written evidence regardless of what some other judge had ordered, and required the witnesses to give their evidence orally. Luckily the witness statement was actually my client’s evidence, not something dreamt up for him by a lawyer, and he was able to give oral evidence successfully.
There are those who rail against affidavits, or at least their over-use. I can understand why the judges do it. My understanding of a matter before and after a conference with my client — something I pursue avidly — is a very different thing. The railings are well summed up by Justice Pembroke who had unusual cause to rail. At his Honour’s welcome in April, he was described like this:
‘Your Honour was an economical barrister in the best sense of the term. Your Honour’s arguments were always well structured, concise and dealt only with the points that were worth arguing.’
This judge was forced to read a 6,657 paragraph affidavit which he described as ‘gallimaufry’. (There seems to be a lot of confused jumbles passing through the NSW Supreme Court this year: of the seven decisions published on Austlii in which the word ‘gallimaufry’ is found, three post-date mid-April and emanate from that Court. An unrepresented litigant seems to have reintroduced the word into the judicial vocabulary by a submission recorded by Justice McCallum: ‘Mr Rahman contends, among other things, that the orders previously made by me are evidence of my mind and intellect “in a state of gallimaufry.”‘)
His Honour ordered that evidence be given orally, repeating the quip attributed to Lord Buckmaster that ‘the truth sometimes leaks out of an affidavit – like water from the bottom of a well’. In full, his Honour’s comments were: Continue reading “‘The truth sometimes leaks out from an affidavit’”
For English news, I have switched from reading The Times‘s legal affairs section to The Guardian‘s. The Times wanted me to pay to read, and I said no. I am not a connoisseur of international newspapers, but from what I can tell, The Guardian is the best newspaper in the world, so I am happy to have discovered its legal section. International in outlook, it brings welcome news of the law in under-reported areas of the world.
England is in the throes of massive change to lawyer regulation. CMS Cameron McKenna has published an article entitled ‘Solicitors PI: Counting the Cost of Improved Legal Regulation’. Self-regulation, Joe Bryant says, is ‘irretrievably abandoned’. The new Legal Services Board will run extensive and expensive advertising about the new regime. There is a new body named in a way not to leave anything to the imagination — the Office for Legal Complaints, tipped to have jurisdiction to make awards of up to AU$170,000 on the papers. And it’s all going to increase the costs of doing business as a lawyer. Of the OLC, the article says: Continue reading “New complaints scheme in England”
‘I Yield To My Learned Brother’
‘Is There a Candlestick Maker
in the House?’
By Ogden Nash
The doctor gets you when you’re born,
The preacher, when you marry,
And the lawyer lurks with costly clerks
If too much on you carry.
Professional men, they have no cares;
Whatever happens, they get theirs.
Continue reading “Professional men, they have no cares”
Update, 8 April 2010: The full-text version of Ms Jones’ article is freely available here. See also this article published on the Queensland Law Society’s impressive website.
Original post: Nicky Jones has written a scholarly article about lawyers’ duty to remain courteous: Lawyers, Language and Legal Professional Standards: Legal Services Commissioner v Turley  LPT 4, published at (2009) 28(2) The University of Queensland Law Journal 353-359. Volume 28(2) is in fact a special edition of that journal, entitled ‘Australian and New Zealand Lawyers: Ethics and Regulation’, and I am seeking out a copy.
For a scholarly treatment of what is and is not nice, like, I recommend the relevant bit of Julian Burnside QC’s Word Watching. Ms Jones’ writing gives me a chance to link to one of my favourite legal documents, a submission by a Colorado lawyer to strike out a criminal charge against a young man who allegedly called his principal a ‘fucker, a fag, and a fucking fag.’ Here is a flavour:
‘In order to provide a context for the alleged crime, we must first examine the history of Fuck and its evolution in society. Fuck’s earliest recorded use is prior to the year 1500 from the English-Latin poem Flen Flyys: “Non sunt in celi quia fuccant uuiuys of heli,” which traslates to “they are not in heaven because they fuck the wives of Ely.” See www.wikipedia.org/wiki/fuck. Continue reading “Lawyers’ duty to speak proper and be nice like”
I did a plagiarism case before the Board of Examiners last year, and looked up the cases then. My colleague Patrick Over also reviewed them for his prosecution on behalf of the Legal Services Commissioner of the plagiarist solicitor in Legal Services Commissioner v WJK  VCAT 108, and cleverly found a case from the old Solicitors’ Board which my researches did not pick up. Senior Member Howell (who was the Solicitors’ Board, back in the day) helpfully digested the authorities (there is also, of course, Re OG  VSC 520, noted by me here): Continue reading “Legal plagiarism cases: a non-exhaustive review”
In Legal Services Commissioner v WJK  VCAT 108, a sole practitioner who has written a legal text and published a number of articles succumbed to temptation when the pressures of life got to him and meant he did not have time to do a proper job of writing a 10,000 word research paper for his Master of Health and Medical Law at Melbourne Uni. He plagiarised extensively from two published articles which he did not acknowledge at all. I can tell you, I presently have the greatest of sympathy for full-time lawyers who have to squeeze Masters study into their lives. But I must confess to a degree of incomprehension as to why the solicitor, having gotten away with the plagiarism and garnered a good mark, thought publishing the plagiarism in the Journal of Law and Medicine was a good idea.
He made admissions at an early stage after he was caught out, but persisted to the end of the misconduct hearing with mitigatory evidence which was rejected as implausible. He pleaded guilty to two counts of professional misconduct at common law which specifically alleged that his plagiarism was deliberate. His practising certificate was cancelled and he will not be getting a new one within 6 months of the cancellation taking effect.
In the many panics during the Bar Readers’ Course when I was expected to adventure incompetently into the criminal law, the criminal lawyers whom I made sure to be nice to referred me to ‘the Bible’, Ross on Crime. Leafing through it disconsolately one day, I noticed the chapter entitled ‘Jazz’. What a revelation. After that, I knew he was a character, but not until I read his obituary in The Age did I realise how much of a character the Bar has lost. I wonder whether the very English form of academic eccentricity which has always been a halmark of the Bar, and the qualities of true professionalism which it sounds like Ross personified, are on the wane, whether any of my contemparies will be David Rosses of the future.
I never met the man who passed away recently having succumbed to motor neurone disease. I did read his book on advocacy, Advocacy. It is beautifully written, short.
To blog, you have to be able to write, type, and learn a new programme (WordPress in my case) but there is really only one trick to blogging, and that is finding what to write about efficiently. I rely on various sources, most of which I will keep under my hat, but the best is a daily email put out for free by a Sydney specialist insurance litigation firm, AR Conolly & Company, titled ‘Benchmark’. Someone there reads or scans a lot of cases, and digests them usefully, adding to the court-provided keyword headnote, providing hyperlinks to the Austlii versions of the decisions, and, where appropriate, to related decisions such as, in the case of appeals, the decision at first instance. Continue reading “AR Conolly & Company’s Benchmark digest”
I commend Quis Custodiet Ipsos Custodes‘s post on what the law demands when giving evidence of conversations. Contrary to a common heterodoxy, the witness who cannot recall the precise words can give evidence of the effect of the conversation. The New South Welsh are the most excited about direct speech, especially in affidavits. Personally, I detest the constant repetition of ‘words to the effect of …’. Better, I think, to say ‘He told me that he knew nothing about the knife’ than ‘He said words to the effect of “I know nothing about the knife”‘.
I like lawyers who state the law on the internet for free. Australia is good at this in the sense of making raw materials available via Austlii. What there is very little of is commentary, and exposition of the law. I have previously sung the praises of John Stratton’s NSW treasure trove of material about criminal law in NSW. And there is the extraordinary resource that is Jeremy Gans’s commentary on the Victorian Human Rights Charter. Recently, though, I have come across two more Victorian lawyers who are stating the law for free on the web, Don Just and Julie Clarke (about whom, more below). And there is a new quality law blog in town: Quis Custodiet Ipsos Custodes, described by its anonymous author as ‘Some potted thoughts and meanderings about law, legal developments and summary prosecutions in Victoria.’ It has a link today to the Judicial College of Victoria’s Criminal Proceedings Manual, a work in progress in anticipation of the commencement of the revolutionary Criminal Procedure Act, 2009.
Continue reading “Free Victorian legal commentary”
After a couple of glasses of red wine late one night when everyone else in my household was asleep, I decided I needed this deed written in Latin on vellum in 1518. I pressed the buy button on the screen, and a bit more than a week later, a bit of 16th century Derbyshire was posted to me from St Petersberg, Florida. It is apparently a grant from William Haae to Thomas Mellour, tanner, and his wife Alice, of lands, tenements, rents and services within the town of Idridgehay. It is witnessed by Thomas Crane (chaplain), Richard Gaskyn, and Thomas Bywater. In my internet enquiries into 1518, I discovered that Tom and Alice got some other land the same day (see item 381).
I picked this one because it was from the reign of Henry VIII, and because 1518 is a long time ago and is kind of the cusp of what I regard as the recent past — of my culture at least — beyond which it all starts to blur. Our calendar had not even been adopted yet, which might I suppose explain why my deed is dated 10 Hen 8th. (Henry was still going gangbusters with his first wife, Catherine of Aragon, part-English but mostly Pyrenean.) The beginning of the Tudors (e.g. Henry’s dad, Henry and Henry’s three kids who succeeded him as sovereign including the first and penultimate Elizabeth who got Cate Blanchett an Oscar nomination) roughly equates with the end of the Middle Ages, the reformation, and the introduction into Europe of the printing press in 1454. Just before that, the crusades had come to an end when no one could be bothered getting it together to get Constantinople back from the Moslems after it fell in 1453, but the peace of Europe arranged by Cardinal Wolsely in the year of my deed was all about uniting against Islam. Continue reading “1518”
This post aggregates hyperlinks to a series of articles published by an English firm, Wragge & Co, entitled ‘Litigation Survival Guide’. It piqued my interest for the reasons set out below. Part 1 is ‘Escape to Victory — Points to Consider When Terminating a Contract’. Part 2 is ‘Protecting the Supply Chain’. Part 3 is ‘Retention of Title: Sellers Beware’. Part 4 is ‘Winding Up Your Corporate Debtor’. Part 5 is ‘Responding to the Threat of Winding Up’. Part 6 is ‘Regulatory Breaches’. Part 7 is ‘Think Before you Claim’. Why it’s not part 1 I cannot imagine. Part 8 is ‘Cost Effective Litigation’. Part 9 is ‘Privilege — top five Q&As’. Part 10 is ‘A Reminder of the Basic Principles of the “Without Prejudice” Rule and Some Hints and Tips for its Use’. Continue reading “Litigation survival guide”
This is a note about a decision by a judge who is only a year older than me, Justice Nye Perram, a novel and somewhat unsettling circumstance: Collard v Australian Securities & Investments Commission (No. 3)  FCA 1681. I looked him up because the judgment is so beautifully written, and found a welcome in Bar News (go to p. 97). The case is about lawyers’ rights to appear for clients to be examined by ASIC (and also, incidentally, by the National Crime Authority). It is also of interest to me because of its discussion of who bears the burden of proof when seeking review in administrative law of a bureaucratic act which statute stipulates may only be taken if it is reasonable (or necessary) to do so. Who bears the burden of establishing reason or unreasonableness? Continue reading “Review of decisions to exclude lawyers from ASIC and NCA examinations”
It is very frustrating when you receive a judgment which skates over the points you think were good ones without grappling with them. Turns out it is an appellable error of law. The guy who won half a million dollars for assault by Connex officers after he spat in their face and broke his wrist as he fled got rolled on appeal, though he lives to fight another day in a retrial: ACN 087 528 774 P/L v Chetcuti  VSCA 274. The trial judge’s reasons were inadequate, according to Acting Justice of Appeal Hargrave, with whom Justices of Appeal Ashley and Dodds-Streeton agreed. His Honour said: Continue reading “Reasons”
I have a bad habit of buying books which cost several hundred dollars each and get overtaken by new editions after a couple of years. I am yet to experience the pain of an expensive text I have bought going into a new edition though, so nascent is my career as a barrister. About this time last year, I had lunch with a judge of the Supreme Court who told me to my absolute astonishment that at the height of his career at the Bar, he spent $80,000 a year on books and reports. That news did me no good at all.
Texts are good, a basic fact of legal life which young lawyers are rapidly overlooking. Without text writers, the law could not possibly survive in its current form. They have an important function. They ignore the bad decisions and explain what the long ones mean.
I picked up most of the library of John de Konig when he retired in June. So I’m seriously well stocked for insurance texts — Sutton’s Insurance Law in Australia, Derrington’s Liability Insurance Law, Kelly & Ball’s Principles of Insurance Law, Mann’s Annotated Insurance Contracts Act, Tarr’s Australian Insurance Law, Clarke’s The Law of Insurance Contracts, Ivamy’s General Principles of Insurance Law, and even Mitchell’s The Law of Subrogation (feel free to come and borrow them).
Recently I picked up a serious text: Ian Enright and Digby Jess’s Anglo-Australian Professional Indemnity Insurance Law, Second Edition, December 2007. It has a green faux leather hard cover with gold lettering. Published by Thomson, it’s almost 1,000 pages long, and retails at $541. It’s a monumental work, the only one devoted exclusively to its subject, and it naturally won the 2008 British Insurance Law Association prize for the most notable contribution to the literature of insurance law for the year. It’s a good book because it achieves one of Enright’s aims, which was to start each topic at the start so as to make it accessible to the non-specialist reader. It is well-organised, and carefully cross-referenced. And it contains lots of answers, which is handy because that’s what I’m in the business of selling. Continue reading “Ian Enright’s Professional Indemnity Insurance Law”
My memory of Enid Campbell’s lectures on William Blackstone was a bit hazy, so David Pannick’s article about him in The Times (‘A sour, morose and imperious judge of the common law’) was welcome. Until I pulled this picture off Wikipedia, I had no idea the famous author was in fact a hare. He was the first Vinerian Professor of Law at Oxford. He wrote down the whole of the English common law in his Commentaries on the Laws of England (you can have the pictured copy for US$15,000), back in the days when serious moollah was to be had for doing such things (he netted £14,000, which equates to about £1.5 million according to this calculator based on the retail price index). Volume 1 was published in 1765, when Bach was not long dead, Mozart was 9, Captain Cook had not set sail for Australia, and the first restaurant had just opened in Paris. The average Australian lawyer’s most frequent intercourse with Blackstone is probably the Mabo decision, in which the common law’s view about ‘desert and uncultivated’ colonies featured. This is the passage:
Continue reading “Blackstone”