That goddam dictum of Denning about file notes and conflicts of evidence

Many a smug lawyer has grinned at me across a mediation table and trotted out some version received by Chinese whisper of Lord Denning’s typically over-reaching dictum in his dissenting judgment in Griffiths v Evans [1953] 1 WLR 1424 at 1428; [1953] 2 All ER 1364 at 1369 said to prove conclusively that the absence of a file note is a slam dunk for the plaintiff in any contest of evidence between solicitor and client. The dictum was confined to disputes as to retainers; it harks from a species of cases decided long ago on affidavit and not oral evidence; and it is at best a reflection of the public policy in favour of the formality of legal relationships than a principle of evidence. So say the judges in the cases extracted below. Continue reading “That goddam dictum of Denning about file notes and conflicts of evidence”

Common issues with another case in another place a factor in favour of dismissal under s. 136A, Legal Practice Act, 1996

J’s Case [2000] VLPT 3

This decision may stand tenuously for the proposition that the factors favouring dismissal of a dispute under the Legal Practice Act, 1996 on the basis that it would be more appropriately dealt with by a court include the existence of factual disputes common to that dispute and another dispute being heard by another court or tribunal. But it is clear that it was an incidental consideration in the decision to dismiss the dispute. Continue reading “Common issues with another case in another place a factor in favour of dismissal under s. 136A, Legal Practice Act, 1996”

No issue waiver of 2nd solicitor’s advice on regretted settlement made necessary by 1st solicitor’s negligent advice

Banjo (NT) Pty Ltd v Ward Keller Pty Ltd [2006] NTCA 1

A tenant alleged its solicitors gave it bad advice on its obligations under a lease which led to it losing the chance to renew the lease. It said it got a new lease, but in order to do so, had to settle disadvantageously a claim for damages for breach of the lessor’s duties to repair. By the time of that negotiation it had taken the advice of its new solicitors. But for the disadvantageous negotiating position it had been put in, it said, it would have pursued the claim for damages for the lessor’s breach and would have won. In the suit against the first solicitors for compensation for loss of the opportunity to sue for damages for that breach, the NT Court of Appeal said it did not have to show them the second set of solicitors’ advice it had received in settling the claim; there was no implied waiver of the legal professional privilege which prima facie enured in the lawyer-client communications. Continue reading “No issue waiver of 2nd solicitor’s advice on regretted settlement made necessary by 1st solicitor’s negligent advice”

Woman bankrupted because of solicitor’s failure to attend court suffered no loss

Mitchell’s Case [2005] VLPT 1

A client’s claim for compensation in a pecuniary loss dispute failed because she adduced no evidence that had she not been declared bankrupt by reason of her solicitor’s negligent failure to turn up to court, she could have avoided bankruptcy on any better basis than she did by paying out the full amount owing to creditors. She was criticised for not applying to set the bankruptcy aside before suing the solicitor. The decision is a shining example of the capacity of causation defences to succeed even in the face of plain negligence. Continue reading “Woman bankrupted because of solicitor’s failure to attend court suffered no loss”

Multiple claims and the $15,000 limit on power

Tweed on behalf of National Exchange Pty Ltd v Griffin Law Firm [2006] VCAT 1305

A solicitor was retained to pursue parties for breaches of contract involving small sums. He fell into dispute with the client in relation to fees in 376 such matters. Mr Howell found there were 376 separate disputes each for less than the jurisdictional limit so that he had jurisdiction, and refused an application for dismissal under the power to dismiss disputes which would be more appropriately heard by a court. Continue reading “Multiple claims and the $15,000 limit on power”

Open offer under cover of denial of negligence averts hearing

Chen’s Case [2006] VCAT 748 (Senior Member Howell): costs; s. 132(b); s. 133(2); s. 407 (see the associated disciplinary decision here)

A solicitor averted being found negligent by openly offering to pay the claimant the maximum amount VCAT could award under cover of a denial of negligence. Mr Howell found that it would not be “fair” to put the solicitor through a hearing only to determine negligence. Continue reading “Open offer under cover of denial of negligence averts hearing”

Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”

A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution

Law Institute v KTBH [2006] VCAT 350 (Senior Member Howell)

There were separate disciplinary and negligence proceedings against the solicitor over the same facts. At the end of the disciplinary hearing, and on the basis of the prosecutrix’s submissions, Mr Howell decided to determine the negligence case and get the whole thing over and done with. He found there had been a delay by the solicitor in getting a woman compensation. Though VCAT was not empowered to order interest on the woman’s claim, he gave her Hungerfords damages, that is, damages in the nature of interest, and calculated the damages by reference to the penalty interest rate. This note is critical of that decision.

Continue reading “A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution”

Legal Profession Tribunal’s costs provision explained

Buxey’s Case [2006] VCAT 173

The decision is a simple illustration of three things:

  • a tribunal is not functus officio in relation to costs upon deciding a dispute;
  • a client can only have an order for costs if the Legal Practitioner behaved unreasonably in relation to the hearing, whereas the Legal Practitioner can have costs for unreasonableness in relation to a hearing of the Client or on the basis that the dispute is misconceived, frivolous, vexatious, or lacking in substance;
  • “costs of a hearing” extend to preparation for the hearing but not to the pre-Tribunal phase and not to settlement attempts (including the costs of conciliation) during the Tribunal phase. Continue reading “Legal Profession Tribunal’s costs provision explained”

Barrister leaves claiming the immunity too late to get costs when he wins

Zunica’s Case [2006] VCAT 110

A barrister succeeded on an immunity defence and sought costs upon receiving the reasons. The applicant sought recognition of the fact that a costs dispute survived the immunity decision. Mr Butcher said [7]:

“The jurisdiction of the Tribunal to hear and determine a dispute is based upon the dispute as it is originated and described to the relevant RPA, in this case the Victorian Bar.”

Although the Victorian Bar had described the matter as a costs dispute and a pecuniary loss dispute in the critical notice under s. 128 of the old Act to the effect that it could not settle the problems, allowing the parties to refer the matter to the Tribunal should one of them wish to do so, he found that properly construed, the documents which had led the Victorian Bar to describe the matter as in part a costs dispute were found in fact to constitute purely a pecuniary loss dispute. And that was despite the fact that the box on the form used to lodge costs and pecuniary loss dispute resolution requests next to the statement “I think the legal practitioner handled the matter badly and I don’t want to pay for this” was ticked. It was so because the covering letter under which the form had been lodged, drafted by a solicitor, “formally claim[ed] pecuniary loss”, and there was no evidence that the discretion to exercise the 6 month time limit for the lodgment of costs disputes had been exercised by the Victorian Bar.

The costs application failed because the whole dispute resolution process took almost 18 months, but the respondent barrister did not assert the immunity as a defence until a week before the hearing. He asserted that:

“it was not proper for a claim for immunity to have been brought [during the attempts at dispute resolution by the Victorian Bar] on the basis that the dispute is misconceived or lacking in substance” [26].

Mr Butcher agreed with that submission, though later he said more equivocally:

“Even if the matter were to be allowed to go through the process of the Bar Ethics Committee before claiming the immunity…”.

It is not at all clear why a barrister ought not claim the immunity during the process of the Bar Ethics Committee. What that Committee was charged with doing, under s. 128 of the Legal Practice Act, 1996 was to attempt to settle the dispute. A dispute with a man who is immune from the dispute and relies on it must be easier to settle than a dispute with a man who does not.

The proposition that:

“It is no answer to say that the applicant client should have known of the immunity; what is relevant is when and how it is notified by the legal practitioner claiming that immunity”

is superficially unattractive since the test for the award of costs against an applicant is whether the dispute was misconceived, but the reasoning is in fact correct, because the immunity is a defence and the dispute is not misconceived until such time as the respondent advises he wishes to avail himself of the defence.

Ed Richards was for the applicant, Peter Cawthorn for the respondent, a barrister.

Man gives up only after suing lawyer for negligence in suing previous lawyer retained to sue lawyer before that

Hulme’s Case [2006] VCAT 109

The applicant’s case was dismissed for want of prosecution, or to use the language of the old Legal Profession Tribunal, was found to be abandoned. There was no counsel assisting the Tribunal; the parties appeared in person. Mr Howell noted that the Legal Profession Tribunal’s procedure in relation to want of prosecution and VCAT’s procedure under s. 76 of the VCAT Act was similar.

It appears that the Registrar of the Legal Profession Tribunal had met personally with the applicant in the absence of the respondent and had then written a letter setting out an “agreement” between them by which the applicant was to write “comprehensive” histories of his troubles.

It is a sad story which began with the sale by the applicant of some meat for $7,000. The applicant’s company never got paid. It is said that the applicant then retained a laywer to chase the cash, though it seems likely the company did so, and that accordingly the company should have been the applicant. Mr Howell had in an earlier proceeding set aside the bill that lawyer rendered in 1991. Then the applicant retained a second lawyer to get the cash from the purchaser, or alternatively as damages for negligence from the first solicitor. That came to nothing and a second Tribunal proceeding failed for want of jurisdiction, because the second solicitor did not hold a practising certificate at the relevant time. Six years after the meat was sold, the applicant hired the respondent, the debt having become statute barred. Five years of prompting was said not to have been able to rouse the respondent from his slumber.

Three years after ceasing his attempts to have the respondent do something, the applicant made a pecuniary loss dispute resolution request to the Law Insitute, and the matter progressed to the Legal Profession Tribunal. It was soon after the referral that the Registrar had his meeting and wrote his letter. The applicant said the fourth solicitor he retained (to prosecute his suit against the third solicitor for negligence in prosecuting his claim against the second solicitor for negligently failing to sue the first solicitor for professional negligence) did nothing. Mr Howell waited four years before striking the matter out for want of prosecution on the basis (i) of the lack of action alone and (ii) on the basis of prejudice to the respondent:

“because the debt was incurred in 1987 or earlier, there was a need for action to be taken promptly in 2002 because the chances of recovery of the debt would be relevant to an assessment of compensation if [the respondent] was found to have acted negligently or contrary to the instructions given by [the applicant].”

Mr Howell said “I regard [the respondent] as likely to be disadvantaged by the passing of time in seeking evidence as to the chances of recovery from the debtor before the debt became statute barred in 1993 or earlier.”

Barrister claims immunity too late to get costs; regretted settlement suit fails

Phua’s Case (solicitors) [2005] VCAT 2919 Costs dispute; s. 86 discount; regretted settlement

Phua’s Case (barrister) [2005] VCAT 2918 Costs of hearing; immunity

Mrs Phua was alleged to have stolen from her employer. Mr Phua admitted complicitly and made restitution. The employer commenced Magistrates’ Court proceedings. The Phuas defended and counterclaimed for wages and travelling expenses. Then they retained the solicitors in February, briefing them with tape recordings of a police interview. Mrs Phua was subsequently charged and convicted in October, but the solicitors did not act in those proceedings which resulted in a bond and an order to make restitution of a further $7,500 or so. It seems the solicitors acted in the counterclaim, the civil proceedings having been perhaps overtaken by the restitution order in the criminal proceedings. It settled on the afternoon of the first day’s hearing, 11 months into the retainer (quaere the date in [5] is wrong).

The solicitor’s estimate of future costs under s. 86 of the Legal Practice Act, 1996 was $3,500 for costs and disbursements. In fact they charged $1,100 more than that. They had charged twice for one letter, and the duplication was disallowed.

Phua’s claim was that he settled “only because counsel for the emplolyer insisted that provision of [certain pieces of documentary evidence] at such a late stage would cause the hearing to enter a second day, with the consequential increase in legal costs”. The claim for compensation was dismissed on the basis that the evidence other than that which was not discovered until the day of the trial could not have been completed on that day anyway.

Mr Howell referred to the understimate by $1,100 as “a signifcant amount” but did nothing about it. He characterised the breach as one of failing to advise changes to the original estimate promptly, and noted that before the trial, Phua knew what the costs would be. Though it was “rather late for [the solicitors] to be asking for counsel’s fees and thus, in substance, to be changing the estimate” he was not satisfied “that the delay in changing the estimate was of a sufficient degree of seriousness to warrant the reduction of the accounts”. So Phua was awarded the grand sum of $19.60. The barrister who was also sued was immune from suit because advice as to settlement during a trial is immune: Biggar v McLeod; Kelley v Corston. He did not get costs “but only because” he did not claim the immunity prior to the hearing.

The parties were unrepresented. Alan Hebb was for the Tribunal.