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””

High Court on whether client’s identity can be privileged

In Z v NSW Crime Commission [2007] HCA 7, a man came to a lawyer and sought advice about the implications of anonymously passing to police information about a suspected criminal. The solicitor gave advice, and the client authorised the communication of the information to the police. The solicitor passed it on without advising his client’s identity. Years later, after the suspected criminal allegedly attempted to murder someone, the NSW Crime Commission purported to compel the solicitor to advise the client’s identity and how he could be contacted. The High Court said the solicitor must do so, as did every other judge along the way. The ratio of the decision is that any privilege which did exist over the client’s name and contact details was expressly abrogated by a statute about the Crimes Commission. As to whether there was any privilege in the first place, though, two judges held that the client’s identity was privileged, two held that it was not, and one — the Chief Justice — did not express a view. Update: Deacons’s analysis here. Continue reading “High Court on whether client’s identity can be privileged”

Free notifications of new High Court and Vic Supreme Court cases; client legal privilege watch

I found some useful web resources yesterday. First, Peter Faris QC publishes blogs which do no more than consolidate in one place all the court-provided information (what I think of as the unreported version of a headnote) about the decisions of the High Court, Supreme Court of Victoria, and Victorian Court of Appeal. Each court’s decisions have a separate blog:

High Court blog

Victorian Court of Appeal blog

Supreme Court of Victoria blog.

They make searching across only the keywords a snap, a feature which Peter told me he uses extensively in his own research, but more importantly from everyone else’s point of view, provides an easy way to be alerted automatically to each new decision of each court (though there is a lag between the courts’ publications of their decisions on the web and Faris cutting and pasting it into his blogs). The blogs have instructions on how to set up the automatic notifications using RSS feeds which sound complicated but which either you or one of your nieces will be able to set up without any difficulty. This is a very simple application of technology providing significant benefits.

From Faris’s High Court Blog, I learnt of a new decision of the High Court on legal professional privilege, Z v New South Wales Crime Commission [2007] HCA 7 (see the next post). Then a Google search on that decision resulted in a new find: the Law Council of Australia’s Client Legal Privilege Watch, which digests new decisions about client legal privilege (also known as legal professional privilege).


High Court speaks on accrual of cause of action for negligence in pure economic loss case

On Friday, the High Court published a near unanimous judgment in Commonwealth of Australia v Cornwell [2007] HCA 16 on the accrual of a cause of action for negligence in which pure economic loss was claimed. I am yet to read the judgment properly, however it is apparent that a cause of action in negligence was found to have accrued decades after the parallel contractual cause of action, which was complete upon breach of a duty of care owed by the Commonwealth to the plaintiff in 1965. Callinan J dissented, saying the cause of action was well and truly statute barred. Neither of the decisions discussed in recent posts, in which a defendant-friendly approach was taken, Winnote v Page, or Jessup v Wetherell, are considered in the decision.

The solicitor and “the other side’s witness”, part II

Part I is the extraordinary story of a leading labour lawyer in Melbourne who was found to have induced breach of contract in taking a statement from an ex-employee of the other side in a class action in which the lawyer was the plaintiffs’ solicitor. Unbeknownst to him, the ex-employee continued to be bound by a confidentiality agreement.

Part II is a simple case in which the defendant’s solicitor applied to enjoin the plaintiff’s solicitor from continuing to act, based on a conflict of duties, Grego v Great Western Insurance Brokers Pty Ltd [2006] WASC 284. It was a workers’ compensation case brought by a fisherman in relation to an injury said to have been sustained on the remote Abrolhos Islands. The defendant said the payment of wages by the company which engaged in the fishing activities (of which the plaintiff and his wife were the directors) was a retrospective fiddling of the books after the alleged accident. The plaintiff interviewed the defendant’s accountant in relation to discovered documents, having alleged a fraudulent conspiracy to claim loss of wages. The accountant willingly cooperated in the preparation of an affidavit. Its contents were not damaging to the plaintiff [20]. This was said to amount to an “obvious breach of the duty of confidence” owed by the accountant to the plaintiff as his client.

There is no criticism of the defendant’s solicitor in the judgment because there is no property in a witness. The accountant must have woken up to the inappropriateness of what he was doing, though, because he sent the draft affidavit to the plaintiff’s lawyer for comment before signing.

When told of this, the defendant’s lawyer objected, saying that the accountant had disclosed a privileged document to the plaintiff’s lawyer. He said a draft witness statement is privileged under the litigation limb of legal professional privilege (a normally uncontroversial proposition) and the accountant had interfered with the defendant’s privilege by providing it to the plaintiff’s solicitor. The accountant did go on to swear an affidavit in the terms of the draft, having taken counsel’s advice and having been advised by the plaintiff’s solicitor that it was entirely a question for the accountant whether he signed the affidavit or not (the judge found at [39] that this constituted the implicit conveying of the plaintiff’s consent to the swearing of the affidavit). So by the time of the injunction application, that had already occurred, and could not be restrained. There was no attempt to restrain the use of the affidavit in the litigation. The defendant applied for the plaintiff’s solicitor to be restrained on the basis that the solicitor had:

“2.1 wilfully infringed against the legal professional privilege of the [defendant] in a draft affidavit;

2.2 have placed [himself] in a position where [his] duties to the plaintiff and [his] duties to a material witness necessarily conflict;

2.3 by [his] actions have created a perception that [he] interfered with a witness in the giving of evidence.”

His counsel’s argument met with about as little success as is possible. Justice Peter Blaxell said: Continue reading “The solicitor and “the other side’s witness”, part II”

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”

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”

Mega firm escapes liability for clear negligence in limitations decision

Winnote Pty Ltd v Page [2006] NSWCA 287 is not only a case about digging up peat for profit but a learned essay on the application of that simple little rule that you can’t sue your lawyer more than 6 years after your cause of action against him accrued. Victorian soils yield difficult legal questions: Perre v Apand [1999] HCA 36, a 70,000 word exegisis devoted to making the law of tortious damages for pure economic loss even less clear than before, was a case about digging up potatoes for profit. The decision is a crystal clear illustration of two principles: (i) a limitation period for a professional negligence claim may expire before the client is aware of either of the negligence or the loss; and (ii) the limitation period commences when some non-negligible loss is first suffered, even if the main loss is suffered a lot later. It also makes clear that in negligent advice cases (or negligent failures to advise cases) once the negligence has occurred, there is no ongoing duty to give the correct advice during the course of the remainder of the retainer, and the courts will conduct their analysis by reference to the substance of the matter, not by reference to the ever-so-clever pleadings of sophisticated plaintiffs. Continue reading “Mega firm escapes liability for clear negligence in limitations decision”

On the perils of accepting the un-met wife’s instructions from the husband

Graham v Hall [2006] NSWCA 208 is a case about a solicitor who paid the price for taking what he thought to be a husband and wife’s instructions from the husband alone, lured by the husband into doing so by the preposterous lies that the wife was (i) stricken with cancer, too sick to attend on the solicitor and (ii) not willing to talk to him by telephone because she was upset at the way she and the husband had been treated when the solicitor was previously acting against them on behalf of one of their creditors. The solicitor admitted in cross-examination that he heard alarm bells, but he did not pay them enough attention. Continue reading “On the perils of accepting the un-met wife’s instructions from the husband”

Unrepresented woman ordered to pay costs of statute barred case

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

Mrs Wells’s case, also the subject of the previous post, was struck out under s. 75 of the VCAT Act, 1998 for having been brought out of time. Mr Howell found that the case was “lacking in substance” because it was statute barred and ordered her to pay the Legal Practitioner’s costs despite accepting that she genuinely believed that she could bring the claim more than 6 years afer the allegedly negligent omissions, which some might say was not a particularly severe misconception if she was suing in negligence, where the first occurrence of some damage marks the accrual of the cause of action, rather than the date of the allegedly negligent act or omission. Sections 75(1) & (2) of the VCAT Act, 1998 provide: Continue reading “Unrepresented woman ordered to pay costs of statute barred case”

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”

Mr Howell releases Client from implied undertaking as to documents

Alessi’s Case is a long-running application to set aside a costs agreement commenced in the Legal Profession Tribunal in 2003. The Alessis succeeded in having their solicitor’s costs agreement cancelled and two bills set aside in [2005] VLPT 18. The latest decision — [2006] VCAT 149  is just a little one about an application by the Clients to be released from what used to be known as the Home Office v Harman undertaking, that is, the undertaking by a litigant or other person who has received information through a process of compulsion such as discovery not to use the documents for any purpose other than the prosecution of the matter in which the information is produced.

The solicitor had discovered over 1,000 documents. There were related court proceedings in which the solicitor was suing the Alessis for his fees, in which a company associated with the solicitor was suing on a loan to a company associated with the Alessis, and in which various consultants engaged by the solicitor were suing the Alessis for fees. The Alessis applied for a waiver of the implied undertaking en masse on the basis of their general relevance to one or more of the 6 related proceedings. That application was granted. Continue reading “Mr Howell releases Client from implied undertaking as to documents”

Just another failed regretted settlement case

In Wellington’s Case [2006] VCAT 2209, Mr Wellington’s teacher status as a tae kwon do expert apparently did not bear him in good stead when he was assaulted at his workplace. He thought his employer was to blame. He retained one of the big labor law firms to represent him in a challenge to Workcover’s refusal to pay him compensation. The man’s allegations were that the reason things had unravelled for him in cross-examination was that he had not been prepared properly for giving evidence, that incompetent counsel had been retained, and that his case had “not been properly prepared”. He had been “forced to settle” on a walk away basis on day 3 of his trial.

As in Stipanov v Mier, a young solicitor’s diligent file note taking did her firm proud, and she won every contest of evidence. Mr Wellington’s claim was tossed aside with the slightest ceremony, Mr Howell’s reasons for decision running to only 1,400 words. The clear implication of the decision is that Mr Wellington’s untruths were exposed by the solicitor’s contemporaneous written records.

Had the advocates’ immunity been claimed by the firm, they would no doubt have won on that basis by reference to Biggar v McLeod, but it was their prerogative to fight the case on the merits.

Nick Klooger was Counsel Assisting the Tribunal. Patrick Over was for the solicitor.

Mr Butcher finds fees payable where solicitor retained but instructed to do nothing

In Wilkins’s Case [2006] VCAT 2199, an unrepresented solicitor appeared in VCAT against an unrepresented former client in a dispute about costs instituted by the former client under the Fair Trading Act, 1999. The solicitor did some work for a beneficiary of a deceased estate. Then the beneficiary said he instructed the solicitor to do nothing, without terminating the solicitor’s instructions. The other beneficiaries and the estate were doing things, however, and the beneficiary had expressed his desire to challenge the estate. He complained when he received two bills for about $3,500. Mr Butcher found that in truth the solicitor had had a watching brief, and accepted the solicitor’s submission that he was “damaned if he does and damned if he didn’t” in that to do nothing would “be laid open to a charge, possibly of a disciplinary nature and potentially a dispute by a client saying that his failure to take action gave rise to liability for the client’s loss” (though it is hard to see how  a solicitor could possibly get into trouble for following explicit instructions so long as he had properly explained the risks). Mr Butcher found:

“Given that vital correspondence can be sent to a legal practitioner under those circumstsances, he is under a duty to seek the client’s instructions concerning that material and in doing so to advise the client of the significance of that material. It is clear that this has been the situation in this matter.”

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”

ACT Supreme Court summarises incompetence of counsel as a ground of appeal

Cornelius Stevens v Emily Mccallum [2006] ACTCA 13 (Higgins CJ, Crispin P and North J)

You can overturn your conviction if you can establish that by virtue of the incompetence of your counsel, your conviction was occasioned by a miscarriage of justice in the sense that you missed out on a substantial chance of acquittal. Whatever other scare tactics may be employed in favour of the preservation of the immunity, I believe it is true that counsel are less likely to cooperate in such appeals if the prospect of liability is attached to such cooperation.

The incompetence of counsel is a ground of appeal only in the criminal realm, and that is the only good reason in my mind for distinguishing between criminal and civil justice in considering advocates’ immunity. In this case, the Court’s contempt for the job done by the barrister was underscored by the language of the joint judgment, which included the words “blundered”, “egregious”, and “quixotic pilgrimage”, and the conviction was overturned because “the incompetent conduct of counsel led to the tender of the only evidence sufficient to convict the accused.” I have reproduced the whole of the Court’s summary of the relevant law below. Continue reading “ACT Supreme Court summarises incompetence of counsel as a ground of appeal”

New Zealand ditches advocates’ immunity; Scotland confirms it

It took New Zealand’s new ultimate appellate court a long time to hear Chamberlains v Lai [2006] NZSC 70 and make a decision, but after a long think, its judges have decided to give advocates’ immunity the boot. Advocates’ immunity, otherwise sometimes known as “barristers’ immunity” or “forensic immunity”, applies equally to solicitors involved in litigation as to barristers involved in litigation. It is an immunity from being sued for negligence or anything else for work in court or work intimately connected with such work in court, and is based on the public policy that the umpire’s decision is final.

Many will be the analyses of how Australia is alone in the civilised world in retaining the immunity (though they will be wrong, because Scotland recently followed Australia’s lead and thumbed their noses at the House of Lords: see below). But what needs to be analysed is whether as a practical matter, clients can successfully sue barristers in any particular place, whatever the name of the impediment to doing so is. A right to sue which gives rise to an unsuccessful suit is a right to make a very poor investment of a lot of legal fees. The law in places which profess not to recognise the immunity is less different than we might imagine from the law in places which do profess to do so. The more I know about the law, the more interested I am in analyses of facts against results, ignoring the legal language interposed between them.

Meanwhile, the Inner House of Scotland’s Court of Session declined an invitation to abolish the immunity in criminal cases in Wright v Paton Farrell [2006] SLT 269, showing uncharacteristic restraint in this curious corner of jurisprudence by not commenting on civil cases.

No term implied into retainer to comply with the Legal Practice Act, 1996

I have always been curious about the extent to which a term might be implied into a retainer giving contractual force to the rules of conduct whether found in rules of the Law Institute or found in the regulatory Acts.

In Equuscorp Pty Ltd v Wilmoth Field Warne (No 3) [2004] VSC 164, Byrne J said at [101] that it was not open to the plaintiff to contend that a breach of s. 174 of the Legal Practice Act, 1996, which governed the withdrawal of moneys from solicitors’ trust accounts, constituted a breach of an implied contractual term in a particular retainer to comply with the Act.

He suggested, in the same paragraph, that a party who wishes to rely on the solicitors’ professional conduct rules ought to adduce them into evidence.