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2nd edition of Professional Liability in Australia reviewed

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”

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Home Office v Harman: some law about its application to VCAT

This is a workmanlike little post, designed simply to trap into the world of this blog for when I need them next in court the legal principles discussed in Acting President Bowman’s decision in ZGW v Legal Services Board [2007] VCAT 1406, casenoted in the previous post. The parties’ arguments are also reproduced below in part. Continue reading “Home Office v Harman: some law about its application to VCAT”

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The obligation not to use documents obtained under compulsion except for the purpose compelled

Update, 21 August 2007: Latest case on the implied undertaking:  Street v Hearne [2007] NSWCA 113.

When a person comes into possession of documents through legal compulsion, they are under an implied obligation not to use them for any purpose but the purpose for which the compulsion operates. Most lawyers know the rule insofar as it applies to discovered documents. But it applies to all manner of compulsion and to information as well as documents, including subpoenaed documents, and documents obtained by the Legal Services Commissioner under s. 4.4.11 (in relation to disciplinary complaints) (or, now, in relation to civil disputes, s. 4.3.5(3)) of the Legal Profession Act, 2004. It is best known as the rule in Home Office v Harman after the House of Lords decision in that case reported at [1983] 1 AC 280.

The latest decision in the saga of Australia’s best-known female criminal lawyer, ZGW v Legal Services Board [2007] VCAT 1406 (see for background my earlier posts here and here and here) is a ruling on an application by the Legal Services Board to be released from the obligation. It is another of Acting President Bowman’s long, honest, and thorough judgments. His Honour is a hard-working judge, and I like the way he sets out with fidelity the parties’ arguments, and then deals with them one by one. It is a diligent, and intellectually honest approach, and goes beyond what could be, and often is, gotten away with in some administrative tribunals. More generally, VCAT is to be commended for having the courage to publish each and every new written decision on the internet.

The case was argued by some heavy-hitters: Joe Santamaria QC for the Board and Gerry Nash QC for the solicitor. Mr Nash prevailed. The tussle was over a police file on the solicitor, and: Continue reading “The obligation not to use documents obtained under compulsion except for the purpose compelled”

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Victoria Marles to speak on progress towards national profession

The Legal Services Commissioner, Victoria Marles, is to speak at the Australian Legal Practice Management Association’s conference in Melbourne on 26 October 2007. I feel for her, with the 4 p.m. Friday shift. With her NSW counterpart Steve Mark, she will speak on what is left to do in creating a truly national profession. Imagine trying to fit all that in on a Friday afternoon, just before cocktails. The conference brochure provides the following profile of the Commissioner: Continue reading “Victoria Marles to speak on progress towards national profession”

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Pizer’s Annotated VCAT Act comes into third edition

        

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”

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Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act

ZG-W v CCW (a firm) (2007) VSC 235 is the latest in the saga of the Legal Practice Board’s practising certificate cancellation of Melbourne’s best known female criminal lawyer. She has succeeded in having the Board’s lawyers enjoined from acting further for the Board on the relatively rare basis that it would bring the administration of justice into disrepute if they were permitted to continue to act. They obtained a transcript of an Australian Crime Commission examiner’s interrogation of the solicitor. The solicitor is charged with giving false evidence in that examination which is one of the reasons why the Board refused to renew her practising certificate. Justice Bell said at [20]:

‘The solicitor at the [Office of Public Prosecutions] refused [CCW’s] request because the plaintiff was contesting the allegations and the presumption of innocence applied to her. If I may say so, this is important advice that everybody should keep firmly in mind.’

Because of the invasive powers of compulsion exercised against the solicitor as examinee, the transcript was not permitted to be used otherwise than for the purposes of the examination, though an exception was made for the purposes of the charge of giving false evidence in the examination. The Legal Practice Board, through its lawyers, procured a copy of the transcript for use in the solicitor’s VCAT challenge to the Board’s refusal to renew her practising certificate. The story involves a baptism of fire for a newly admitted solicitor: Continue reading “Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act”

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Souped up conduct rules commence in England

The English have promulgated a new set of professional conduct rules for solicitors, which commence tomorrow. Here they are, and here’s a Law Society page with associated resources. I have only scanned them, but they seem to be beautifully written: clear, detailed, without unnecessary complexity, and graced by helpful commentary. Some of them seem sensibly to record stuff that probably doesn’t strictly need to be in rules of this kind, but which it is very sensible to include. As a professional negligence lawyer, I would love it if our solicitors’ rules said this, as clearly as this: Continue reading “Souped up conduct rules commence in England”

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The regulator’s regulator, the Ombudsman, criticises Migration Agents’ bureau de spank

The Ombudsman has been looking into the performance of a regulator, MARA, the Migration Agents Registration Authority. He was critical. His press release is here, the full report here. Reproduced below are the bits about impartiality and the avoidance of conflicts of duties ‘in the case where an industry representative body is also the regulatory body and complaint-handling organisation’.  Though the Legal Services Commissioner does not fall into that category, the Uber-regulator’s review of a professional regulator may nevertheless be of interest to those who deal with her.  The Ombudsman suggested that oral complaints be taken, reduced to writing by regulator staff, and confirmed by sending out the writing to the complainant.  I think that would be an efficient way of dealing with complaints against lawyers by unsophisticated clients.  It would be a case of a stitch in time saves nine, and would prevent lawyers from having to respond to allegations which are incomprehensible and legally embarrassing. The Legal Services Commissioner ‘may’ provide assistance to members of the public in making complaints: s. 4.2.12(c) Legal Profession Act, 2004. Under s. 123(5) of the Legal Practice Act, 1996, the Law Institute’s Professional Standards were obliged to assist if asked, but to my knowledge they rarely did so, and I am aware of instances where assistance was formally sought but refused. Now, that extract from the report I mentioned: Continue reading “The regulator’s regulator, the Ombudsman, criticises Migration Agents’ bureau de spank”

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So-called lawyer to the underworld fails in challenge to ticket non-renewal

Melbourne’s best known female criminal lawyer was convicted some time ago of contempt of court for refusing to answer questions on oath in a Supreme Court murder trial of her husband’s murderers: as I reported here. She has sought review of that decision in VCAT, and sought judicial review from the Supreme Court as well. That latter course failed today, partly because of the availability of her remedies in the VCAT proceedings, which may still result in the renewal of her practising certificate. Until that case is decided, she is entitled to keep practising. See The Age‘s article here, and Justice Kevin Bell’s judgment in ZGW v Legal Services Board [2007] VSC 225 here. It begins by sketching out the background issues and the questions for determination in the case:

‘1 The plaintiff, a young and intelligent solicitor, was working hard in a firm specialising in criminal law. She met a man who was one of its clients and the two formed a relationship. They were living together as husband and wife when he was murdered. Continue reading “So-called lawyer to the underworld fails in challenge to ticket non-renewal”

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Vic Supreme Court summarises VCAT’s power to review practising certificate decisions

In the matter of ZGW v Legal Services Board [2007] VSC 225, Justice Bell made some observations about VCAT’s power to grant merits review of decisions about practising certificates made by the Legal Services Board, and the interrelationship of that power with the availability of judicial review: Continue reading “Vic Supreme Court summarises VCAT’s power to review practising certificate decisions”

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State of the Profession Address: National Legal Practice Project

Tim Bugg, the Law Council of Australia’s chairman, gave the State of the Profession address at last weekend’s 35th Australian Legal Convention. He covered many topics, but this was his take on the national legal profession project:

‘With its constituent bodies, the Law Council has been a driving force behind the national legal profession project for well over a decade.

Designed to provide seamless cross border practice under a uniform regulatory scheme for Australia’s lawyers, introduction of implementing legislation in all states and territories is close at hand. Continue reading “State of the Profession Address: National Legal Practice Project”

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Rotten one day, perfect the next: Queensland’s complaints system

Now, that’s a cheap headline, I know, but I couldn’t resist. Queensland Legal Services Commissioner John Birton’s recent speech extolling the virtues of his office does read a bit like that, but probably deservedly so. The statistics he quotes speak for themselves: he’s not falling prey to the tendency of some regulators to drown in going through the procedures of unmeritorious complaints and having no time for greater proactivity. On the contrary, he is chortling about instituting an average of 22 investigations of his own initiative every month. For those who can’t be bothered reading it, here are some interesting tidbits: Continue reading “Rotten one day, perfect the next: Queensland’s complaints system”

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Victorian Legal Services Commissioner: 2 new brochures

Victoria Marles’s office has produced two new brochures, available from Information Victoria:

‘Are you making a complaint about legal costs? The LSC is required to make reasonable efforts to resolve costs disputes between legal practitioners and their clients. The brochure includes information on the maximum amount of costs which may be considered ($25,000); time limits for making a complaint and the process for making complaints.

Mediation service explained outlines how mediation can be used to resolve civil complaints.

Brochures and further information are available from the LSC at Level 9, 330 Collins Street, Melbourne 3000, phone 1300 796 344 (local call) or (03) 9679 8001 or visit www.lsc.vic.gov.au.’

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New Law Institute of Victoria CEO: Michael Brett Young

The 55 year old Melbourne Grammar boy Michael Brett Young is a former Maurice Blackburn Cashman mandarin, just like his predecessor, John Cain, son of Premier Cain, who opened up the spot by taking up the plum post of Victorian Government Solicitor. His two sons are studying law.

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English Bar fights for last vestige of self-regulation

Geoffrey Vos QC, the new Chairman of the English Bar Council gave his inaugural address on 11 December 2006, lamenting the imminent demise under the Legal Services Bill, of the last vestiges of self-regulation in England, a hoped-for statutory entitlement in the independent regulator in its discretion to delegate matters back to the traditional disciplinary bodies like the Bar Council for investigation. The Legal Profession Act, 2004 (Vic.) contains just such a power, described as a right to “refer” investigations to the Law Institute of Victoria, or the Victorian Bar Ethics Committee, and Victoria Marles, the Legal Services Commissioner, has been availing herself the discretion with gusto.  The history of the demise of self-regulation in England is well told here by Mark Davies. The Clementi Report had a lot to do with it. Vos’s speech included the following: Continue reading “English Bar fights for last vestige of self-regulation”