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?”
The finality of the proceeding stayed pending further order
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”
Tendency evidence in solicitor’s negligence case
Vaccaro v Flammia  NSWSC 1322 is a tantalizing case about the admissibility of tendency evidence of dishonesty against a solicitor and about issue estoppel arising from earlier cases brought by others against the same solicitor. It was decided against the uniform evidence legislation which has been introduced into Victoria by the Evidence Act, 2008 (Vic.), yet to commence. The tantalization which is an incident of this being only an interlocutory decision will be consummated if the matter goes to trial.
The solicitor’s clients left a certificate of title with him for safekeeping. He kept it in ‘a tin’ in the back room of his practice. Someone took it without the clients’ authorization and raised $400,000 by forging their signatures on a mortgage. The clients did not receive any of the money. The witness which the mortgage instrument suggested had witnessed it did not exist. Continue reading “Tendency evidence in solicitor’s negligence case”
I only just caught up with the fact that the Court of Appeal has overturned Justice Gillard’s decision in Kabourakis v Medical Board of Victoria  VSC 493, the subject of an earlier post. See  VSC 301.
VCAT’s Vice President Harbison, sitting in the Legal Practice List for the first time I am aware of, has contributed what appears to be a most interesting addition to the authorities about whether solicitors engage in trade and commerce for the purposes of the Fair Trading Act, 1999 (and, by analogy, of the Trade Practices Act, 1974), and whether solicitors may ever be sued under the Fair Trading Act, 1999. As to which, see this earlier post. The decision is Walsh v PJCC&A Pty  VCAT 962 which I will certainly be posting a detailed analysis of.
Then a NSW decision has illustrated again the problem of sloppy regulators failing to consider whether what purports to be a complaint received by them is in fact a complaint as defined by the Act which regulates them (an allegation in both of the cases noted here). This time it was NSW’s Legal Services Commissioner, Steve Mark, getting bashed up by the NSW Administrative Appeals Tribunal’s Legal Services Division in Legal Services Commissioner v SG  NSWADT 48:
’64 As stated, Mr Mark determined that a complaint had been made of deliberate charging of grossly excessive amounts of costs, when no such complaint had been made.
65 Without any further evidence or effort to obtain a valid expert opinion, the LSC instituted the complaint and brought this matter before the Tribunal on the equivocal opinion expressed by Mr McIntyre. Samantha Gulliver investigated the complaint on behalf of Mr Mark, however what, if anything, resulted from such investigation was not placed before the Tribunal. Continue reading “More cases”
Anshun estoppel’s application to the post-fees case professional negligence claim
To what extent can you defend a suit by your solicitor for fees and then turn around after settlement, or after the trial of that suit, and sue for negligence? The leading Victorian case on the question is Delahunty v Howell, unreported, Supreme Court of Victoria, Gray J, 12 May 1993 (BC9300688). It was an administrative law review of a decision of VCAT’s Senior Member Howell back when he was Registrar of the Solicitors Board. This post considers that decision and subsequent decisions of VCAT’s predecessors which have applied it. Continue reading “Anshun estoppel’s application to the post-fees case professional negligence claim”
Once the time for taxation runs out, the solicitor can sue on the bill as a simple debt
I have never been quite clear about what you have to prove in a suit for fees. I was attracted to the proposition that if a client wants to go through a bill item by item, the place to do that is in a taxation, and if they do not go down that path, or they can’t because they’re out of time, then no challenge of the kind typical of a taxation ought to be allowed in the suit for fees, that is, that the bill may be sued on as a debt due and owing. But I was never entirely confident about it.
The Full Legal Profession Tribunal’s 16 June 2000 decision in B v Home Wilkinson Lowry  VLPT 1 is authority for many things (principally that state tribunals like VCAT have no jurisdiction over the costs of Family Court proceedings), and seems to be authority too for the proposition which attracted me. Continue reading “Once the time for taxation runs out, the solicitor can sue on the bill as a simple debt”
Accord and satisfaction as a defence to a professional negligence claim
In Anfuso’s Case  VCAT 1690, Member Butcher of VCAT’s Legal Practice List gave summary judgment for a solicitor by reference to the principles of accord and satisfaction. The solicitor had sued for her fees in the Magistrates’ Court. She got default judgment against her former client, and got an order that his employer pay some of his wages directly to her in satisfaction of the judgment debt. He applied to set it aside. They settled the whole thing. He promised to pay the balance owing and in return, she agreed to the setting aside of the judgment and of the attachment of earnings order. Then he decided to sue the former solicitor in VCAT, and it was this suit which was thrown summarily out of court. Member Butcher described the claim:
‘Mr Anfuso engaged [the solicitor] to act on his behalf in relation to the purchase of a property. The legal services were quoted at a certain price with a proviso that additional work would be charged in the event of any difficulties. Some difficulties did arise and additional charges were made. It is not a matter that I need dwell upon, the propriety of the charges, however this application made by Mr Anfuso is seeking re-payment of moneys paid by him in relation to that work and subsequent legal costs incurred when [the solicitor] sued him for those fees but also his own legal expenses. The particulars of the claim also make allowance for an amount of professional fees which were originally quoted.’
Whatever cause of action Mr Anfuso might have had seems to have merged, in Member Butcher’s view, in the settlement agreement.
I once tried to sort out the differences between res judicata, issue estoppel, Anshun estoppel, and accord and satisfaction by way of introduction to the rule against collateral attack 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. This is what I said, though the formatting is a bit impoverished by the transition to the blog: Continue reading “Accord and satisfaction as a defence to a professional negligence claim”
Defence found to be an abuse of process in the form of a collateral attack; Disciplinary ruling prima facie evidence in later civil trial
The latest Australian Law Journal has a critical note about Conlan v Simms  EWHC 401 (Ch), in which an English High Court judge held that a ruling of the Solicitors Disciplinary Tribunal was prima facie evidence in a later civil trial that the solicitor had been struck off for dishonesty, watering down the proposition in Hollington v Hewthorn & Co. Ltd  KB 587 that a criminal conviction was inadmissible in a civil trial of the same facts at issue in the criminal case. Continue reading “Defence found to be an abuse of process in the form of a collateral attack; Disciplinary ruling prima facie evidence in later civil trial”