A Melbourne lawyer has written a book about a landmark Melbourne case. Michelle Schwarz’s A Question of Power; The Geoff Clark Case has just been published by Morrie Schwarz’s Black Inc which also publishes The Monthly and Quarterly Essay. Judging by the ‘top articles this month’ panel, there is a huge thirst out there for knowledge about limitation periods. One of the Clark decisions is a landmark in that area of the law: Stingel v Clark  HCA 37.
I bought the book yesterday and have started reading it. It’s promising. It features slabs of Robert Richter’s cross-examination. It is a book about a trial of a kind which I have not seen too many examples of in recent times. Schwarz is doing a Readings talk with ABC Radio National’s Damien Carrick of the Law Report tomorrow evening at the Hawthorn store. The blurb says: Continue reading “New writing about the law in Melbourne”
Stephen Witham (pictured) moved into Michael Flaherty’s flat. The relationship quickly soured when Witham assaulted Flaherty’s girlfriend, and stood over people for drugs and money. So Flaherty got some mates together, hit Witham about with baseball bats, hogtied him with ropes and cable ties, wrapped him in a doona, popped him in the boot, and drove him down Mirboo North way for the purpose of executing him in a pine plantation. Before shooting him, he had a chat with Witham and asked him if he had any final requests. Witham asked for a beer, and they each had one from a six pack. Then Flaherty kicked Witham so as to roll him down a hill, and acceded to his request not to be shot in the face, shooting him dead, in the back of the head. Afterwards, he boasted about the killing. It might have gone undetected but for an anonymous tip off to the police. He showed no remorse in his police interview, pleaded guilty at the first opportunity, and was not known to have been violent in the past. According to Justice Kaye, he did later come to realise the enormity of his offending and was genuinely contrite. Continue reading “On “cowardly””
Update, 25 January 2010: The Act commenced on 1 January 2010. See now this post.
Update, 13 January 2009: The Evidence Act, 2008 was assented to on 15 September 2008 and is to commence on a day to be proclaimed, probably no later than the end of this year.
Original post: The government has finally introduced the Evidence Bill, 2008 which, when passed, will make Victoria the 5th jurisdiction (after the Commonwealth, NSW, ACT, Norfolk Island and Tasmania) to adopt the uniform evidence legislation. It is a good development, because some of the common law rules of evidence, as amended by the Evidence Act, 1958, are so ridiculous that, according to a most experienced Supreme Court judge I heard speaking extra-curially, only especially irritating middle class unrepresented litigants ever dare to raise them.
It will also be good because the law clusters more efficiently around statutory provisions. Tracking the evolution of common law concepts is made difficult by inconsistency of language, whereas there is only one statutory text. Statutory text can have its own set of problems — the ad hoc series of amendments to the Evidence Act, 1958 which don’t hang together too well being a good example — but great care was taken in the drafting of the uniform legislation. Now to find all the cases about illegally obtained evidence in civil cases, we will be able to tap the relevant sub-section of the Act into Case Base, or even Austlii’s ‘Note Up’ function. A further advantage is this: the Federal Court and the Supreme Court of NSW are much better at publishing reasons for evidentiary rulings than the Supreme Court of Victoria. So Victorians will be able to make use of the many decisions of those courts which state the law relatively consistently and clearly by reference to modern cases, whereas evidence texts on the common law are replete with 19th century authority, and the common law states’ law of evidence is divergent because of different statutory modifications, but not sufficiently divergent to justify separate texts.
The Attorney-General’s media release is all about the millions which will be saved by the abolition of the best evidence rule, which requires the originals of documents, rather than copies, to be adduced in evidence. He obviously hasn’t noticed that no one takes any notice of the rule anyway. Indeed, one of Melbourne University’s evidence gurus says the rule no longer exists.
The Times has put online facsimiles of the original newspaper law reports of 200 classic cases which have been influential in moulding British law. The Times Law Reports are actually to be found daily in The Times. I met an urbane thong vendor in a small seaside village near Columbo once who read them religiously, pointing out that as a businessman, it was important for him to keep up with law. It was a beautiful moment. They are summaries, written by barristers, unlike most of the modern Australian reports which contain the full text of a judgment, only rarely edited, accompanied by a headnote. Here, for example, is Donaghue v Stephenson. David Pannick QC’s paean to the law reporters of The Times may be found here. The article points out that not all law reporters have been so well received:
‘Isaac Espinasse was a law reporter working at the end of the 18th century. In a 1953 case in the Court of Appeal, Lord Justice Denning commented on the inadequacy of his work, noting: “It is said that he only heard half of what went on and reported the other half.”’
Update: The nice thing about blogging compared with, say, writing a book (not that I would know) is the interactivity. Lawyers are obviously still a bit chary of the comment function, given how many of them email me rather than comment. Nothing prompts the sharpening of e-pencils quite like an error, and it seems I have made one, in an article, ironically, about errors of exactly the same species. To stem the deluge of correspondents (which stands at 2) let me recognise that ‘beaks’ are not, in common parlance, lawyers, but Magistrates, and judges, possibly even tribunal members. I am not convinced that all of the guests on 3RRR’s Lawyers Guns & Money’s impossibly amusing ‘Beak of the Week’ segment were such folk, but then again, that was a long time ago.
Original post: Often enough, I see pleadings against barristers, and against solicitors, which recite that the defendant is an Australian legal practitioner within the meaning of the Legal Profession Act, 2004. I am often unsure why. I think it would be fine to plead that the defendant is a solicitor, or a barrister. The other day, I came across a decision of Justice Byrne which considered a somewhat analogous question in a completely different context: Smith v Harris  2 VR 335. It reassures me that changes in statutory language need not necessarily affect the use in the law of ordinary language: see below. But there are moments when the language of the Act should be pleaded, and when you must, as a matter of law, call yourself an Australian legal practitioner rather than any old beak. Continue reading “Why you needn’t call a solicitor an ‘Australian legal practitioner’”
Julian Burnside QC is one of 4 Victorians whom I know to have had Wikipedia entries as barristers. The others are Mark Dreyfus QC, Lex Lasry QC, and Peter Faris QC. (Are there any others?) Julian Burnside has become a writer, Mark Dreyfus a federal politician, and Lex Lasry a judge of the Supreme Court. All but Peter Faris were in Latham Chambers with me.
Now Julian Burnside has written a new book, Watching Brief. Here’s an extract published in The Age. I almost bought it in the bookshop today, but then I thought of all the other books I have to read, and I’d just bought The Legal Mystique (1982, Angus & Robertson) by Michael Sexton and Laurence Maher (‘drugs’ is not an entry in the index) to add to my collection of books about the legal profession. The collection’s coming along nicely since yet another legend of Latham Chambers, Jeff Sher, gave me a little manila-covered book by W.W. Boulton, B.A., Secretary to the General Council of the [English] Bar, published by Butterworths in London in 1971: Conduct and Ettiquette at the Bar. And a friend of mine has promised to permanently lend me Gifford’s Legal Profession; Law and Practice in Victoria. I figured I’d probably buy and read Andrew Fraser’s memoirs before Julian’s latest. But I might change my mind about that, because I imagine Fraser’s is the more interesting, but Burnside’s the better written. In fact, I suspect the writing in Burnside’s is to die for.
Because of the book, he’s on the media circuit. Here’s his interview with Monica Attard. His reference to a ‘marijuana cigarette’ brings to mind by far the most interesting contribution to the Peter Faris debate, which was the Law Institute’s President’s quip to the press that most barristers wouldn’t even know what cocaine is. But Monica, I’m not at all sure that the Bar is investigating whether Mr Faris is a fit and proper person to be a barrister; where did you get that from? Continue reading “Julian Burnside, his book and his take on the Peter Faris affair”
The Third International Legal Ethics Conference is to be held between 13 and 16 July 2008 on the Gold Coast. It costs $500 or $220 a day. Queensland’s Chief Justice de Jersey, who has written at least a few disciplinary decisions which I happen to have stumbled across, is a keynote speaker, along with Professor David Luban of Georgetown University, who is a contributor to American legal ethics blogs like Balkinization, and Professor Deborah Rhode of Stanford University. There is an impressive array of other speakers, and they are calling for proposals for papers by the end of February.
In googling for this post, I noticed that you can buy online .pdf versions of articles in the Georgetown Journal of Legal Ethics separately for US$3.50 a pop.
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”
I’m just going to cut and paste this article from Legal Blog Watch, and hope that its author Caroline Elefant won’t mind. I have little to say on the topic which is not already pithily set out by her, but will draw your attention to one section of the book in particular, the bit on Cross Border Legal Ethics.
I’m sure we’ll see this sort of thing in Australia. It will start by smart firms bundling up all their newsletters into one booklet on a topic, distributing it in hard copy and then making it available online too. That will happen when people realise the design possibilities of publishing in .pdf format. I write this blog in large part because having to explain a case in simple language makes me remember it much better than if I just read it. I think benefits will come to firms who encourage their solicitors to write for publication, despite what marketing folk might say. It is necessary to consider the benefit to the knowledge base of the lawyers who write, as well as the direct marketing potential of the publication. Here it is:
‘Law Firm Puts Treatise Online
Bruce MacEwen shares this news about a comprehensive, online book introduced by Proskauer Rose and entitled “International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes.” The book, prepared by 50 Proskauer lawyers, provides 28 chapters of readily accessible and detailed information on international litigation. Continue reading “Firm publishes big book free online”
President Maxwell spoke at Jason Pizer’s book launch the other night. There is no nonsense about him, and no hubris. I liked the way he sorted out Mr He’s case, one which was sufficiently memorable for him to make reference to it in passing in his speech. The President is at pains to cast the Court as a practical and fast court, correcting injustices but not interfering with first instance decision makers for a want of i dotting and t crossing. He does not aspire to a Court writing finely appeal-proofed legal treatises for the delectation of other courts of appeal. Indeed, he is advocating ex tempore judgment giving wherever possible. The President’s speech on the New Court may be found here, the latest practice note on civil appeals here.
The President sees written advocacy as very much on the rise in the Court of Appeal, a way of getting through more hearings more quickly and reducing what he properly regards as the inexcusable delays which have sometimes characterised the Court of Appeal in the past. President Maxwell actually said that justice delayed is justice denied, an admission rarely heard in the formal, public part of our grindingly slow superior court system, but one which practitioners and their clients feel keenly, all the time.
I kind of knew all this, but I was only vaguely aware of the passion with which the President is trying to clean up the archaic and uncertain bits of the law of procedure. Continue reading “President Maxwell: legal reformer”
My friend Jason Pizer had the launch of the third edition of his book this week, and I went along and enjoyed the company of VCAT’s Acting President John Bowman, Deputy President Marilyn Harbison, and Justice Chris Maxwell, President of the Court of Appeal. It’s the VCAT equivalent of Williams, the looseleaf ‘Bible’ of civil procedure in the state courts. Compared with Williams, it is a joy to use. It has the same in-court handling as the ‘Cook Book’. It has serious traction with the members over there. It’s full of intellectual grunt. And it’s about one-tenth of the price of Williams at $130. Continue reading “Pizer’s Annotated VCAT Act comes into third edition”
Speaking of the as yet relatively unexplored marvel of being able to hyperlink in legal writing, as I was in the last post, I put out a 30-odd page advice on the interrelationship of the Victorian and several federal proportionate liability regimes the other day. I find one of the most difficult parts of legal writing to be submissions, or advice, about statutory construction. Some provisions yield up to the reader’s mind that which they are code for just by reference to the section number: for Australian lawyers, maybe s. 109 of the Constitution, and s. 52 of the Trade Practices Act, 1974. For all the others, though, there is the problem that the reader has to look up the statute to see what concept the section number signifies. Ideally, you can introduce the concepts and then refer to them in a summary way without reference to the section number. So I tend to talk about the prohibition of misleading or deceptive conduct rather than s. 52 of the Trade Practices Act, 1974, once I have made it clear that I am talking about the s. 52 prohibition and not some other one. But you just can’t always achieve that. Where that happens, it is really useful to hyperlink to the provision. One click of the mouse, and the reader is staring at the words which articulate the concept signified by the section number.
So in my advice, I hyperlinked many of the references to statutory provisions. The links went in each case to a web page on Austlii which contained only that section. Defined terms in the provision are themselves hyperlinked to the definitions section. By way of example (ignore its content!):
‘The Fair Trading Act, 1999 correlate of s. 52 of the Trade Practices Act, 1974 is s. 9: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.
My advice was the first I had ever seen which incorporated this simple but incredibly useful device. Most legal secretaries would be well able to do this on behalf of the people they work with. Modern day articled clerks can probably do it with their eyes shut. If you really got excited about it, you could just send your advices over to India and ask them to insert the hyperlinks and email it back to you in half an hour.
I have various databases of Austlii separately bookmarked. With that slight advantage, it took me just over 2 minutes to find the pages for s. 9, s. 52, and Wardley’s Case, and paste them as hyperlinks over the associated text in a Word document, but if you’re already working off the electronic version of the statute, as I often do, it’s a snap to cut and paste the URL you’re already at into the advice you’re working on. So here’s how you do it, assuming you’re using Word for Windows: Continue reading “How to hyperlink your advices to specific statutory provisions cited”
Justice Gillard is my favourite judgment writer. What a shame the legal system is about to lose him to retirement. When the moment is ripe, he gives the cattle who wander without insight onto the slaughterhouse floor the most splendid judicial whallopings. Justice Gillard is a senior judge, and there is a serious point to be made by this post which is otherwise well-suited to public holiday reading. There is an extraordinary terror in the law of calling anyone a fraud (which means nothing more in the law than ‘dishonest’), and of finding anyone to have deliberately lied. Doubtless this is preferable to a world in which lives might be ruined by the dishing up of gossip as fact, but scandalous lies are routinely tolerated, even expected, and virtually no one is ever prosecuted for perjury, rendering the oath meaningless. It is a splendid thing when a lawyer has sufficient command of the legal process to call it as he sees it when the need arises, and Justice Gillard is one of those lawyers.
Remember the whalloping his Honour gave the Law Institute in a professional discipline prosecution, where he said that its decisions were so manifestly unreasonable as to comfortably satisfy the Wednesbury unreasonableness test, to wit that no reasonable decision maker could ever have made them? It was nothing compared with the defamation case of Li v Herald & Weekly Times  VSC 109 about the Hun‘s “Medibonk” expose of the Collins St Chinese herbalist who provided massages with happy endings and then wrote out receipts with service codes for less exciting services which private health insurers would pay for. That’s ‘happy endings’, by the way, in the sense of ‘Ms Li removed the bath mat sized towel, put a pair of latex gloves on her hands and applied creams and oils to his testicles and penis. His penis became erect and Ms Li masturbated him to ejaculation.’ Continue reading “Was this the most unsuccessful Australian defamation action ever?”
In my post “Judge uses big word”, I commented on President Mason’s use of “tergiversation”. Now David Starkoff at Inchoate has noted another’s analysis of the odds of each of the High Court judges other than Justice Kirby being responsible for the appearance of “epexegetical” (which seems to mean “explanatory in a way supplementary to the principal or original explanation”) in a decision on migration. (10/1 odds: Justice Gummow.) Love how the judiciary tends to save up these little diamonds of language for those least likely to have the resources to look them up.
And, by way of update to my post “Finally, some scholarship on Australian lawyers’ conflict of duties”, here is a long article on conflicts of duties in America, “I’m All Verklempt!” by Kendall M. Gray et. al., including a long analysis of the Yanks’ position on Chinese walls. The relationship between establishing a conflict of duties and the entitlement to compensation of one of the people to whom the conflicting duties is owed is a bit complicated in Australia. It certainly does not follow that every breach of fiduciary duty gives rise to a right to money in the victim from the lawyer. But in Texas, there is a principle of fee forfeiture which applies in cases of clear and serious breaches of fiduciary duty, a remedy born in Burrow v. Arce 997 S.W.2d 229 (Tex. 1999). Where an attorney was found to have grossly overcharged, fee forfeiture was imposed so that the attorney lost all his fees rather than just those which exceeded a reasonable fee: In re Allied Physicians Group, P.A., No. 397-31267-BJH-11, Civ. A.3:04-CV-0765-G, 2004 WL 2965001, at *5 (N.D. Tex. Dec. 15, 2004) (unpublished), aff’d, 166 F. App’x 745 (5th Cir. 2006).
Mr Gray’s style cannot be described as stuffy, and exemplifies what is good about Texas, namely plain talking: Continue reading “Updates: big words, Texan legal writing, conflicts of duties”