18 days after I buy mine, wigs’ future looking shaky

The barrister garb costs more than $1,500 to buy if you take up the mega-discount the merchants of these things provide to baby barros. Normally, the wig itself costs $1,350. I shelled out for some at around 4.45 p.m. on 30 June 2007. Now the English have abolished wigs for civil and family trials (some consultant managed to wring a fee of AU$250,000 out of her Majesty’s government for the report recommending same) and the New South Welsh are muttering in the same direction. NSW Supreme Court judges are actually going to vote on the question. What is more, Rob Hulls, Victoria’s Attorney-General, has reportedly said ‘there is plenty of horsehair running around Flemington … and that is where it should stay’. Apparently, it’s already happened in Westralia. Here’s a .pdf version of a whole book on the history of legal wigs from England. And here’s an Australian pamphlet on the subject.

I thought the wig was a bit dear, but now that I know the hair is from Mongolian ponies, I’m much happier. In fact Ludlows say:

‘Our wigs are made from the hair of Mongolian ponies and Australian Brumbies, the finest horsehair available in the world. The hair used for our wigs is taken naturally by cutting, the animals are not harmed. Once sourced, the hair is sterilised and bleached so that it is completely clean and conforms to the strictest standards.

Each wig takes six days to make and is built on a block by one artisan (not on a production line) in the same manner that the finest hats were once made, ensuring the wig keeps its shape for a lifetime.’

I think the barristers’ garb is a bit plain. It needs to be revamped, ramped up, given a bit of bling. I’m thinking gold, lace, medals. Like the Chief Justice of Malaysia: Continue reading “18 days after I buy mine, wigs’ future looking shaky”

1 in 4 law graduates in fields “clearly unrelated to law”

The Age published a Kenneth Nguyen article today out of the blue about the numbers of:

  • Australian law schools — 30 years ago there were 12, now there are 30;
  • people pursuing law degrees — which the article suggests is the modern day arts degree; and
  • people not going on to practice law — 1 in 2 — or even work in law related fields — 1 in 4.

I doubt the social utility of people spending 3 or 4 years in a course as vocational as law without any intention to practise. People study maths and chemistry because the skills are transferrable. So too, apparently, law. No one recognises the enormous social inefficiency of people studying one thing in order to get some spin-off benefit. No one asks why education should not be devised to teach the skills directly. I always marvel that the one thing people who studied maths do not necessarily come away with is a facility in mental arithmetic and the approximation of sums, the two things which might actually be of benefit to them in the real world. And then there are the law students who come away from law school without an ability to write. Don’t get me started.

Auditors’ liability: what to do with information from a whistleblower

The Corporations Act contains whistleblowers provisions. Section 9.4AAA which commenced on 1 July 2004 provides extensive protections to officers, employees, and contractors of companies who report to auditors, non-anonymously and in good faith, matters which they reasonably believe suggests that a company or an employee may have breached the Corporations Act or the ASIC Act. Importantly, the only people to whom the whistleblower’s information may be passed  by the auditor without the whistleblower’s consent are ASIC, APRA, or the Australian Federal Police. The company being audited may not be informed without the whistleblower’s consent. This is a kind of Australian version of America’s Sarbanes-Oxley Act which contains similar provisions. ASIC’s information sheet is here.

No absolute bar in England to representing and opposing same client in two different matters

Goubran shares my view that a solicitor can act for and against the one man at the same time. Just not in relation to the same thing. In fact, there is a degree of relation which makes it impermissible, and Goubran sets out the practically meaningless judicial utterances on the test for the requisite degree of relation. He does so by tackling the following passage from Bolkiah v KPMG [1999] 2 AC 222, 234 (Lord Millett) which I have always thought to be overarching: Continue reading “No absolute bar in England to representing and opposing same client in two different matters”

A good summation of Microsoft Word metadata issues for lawyers

I have been involved in teams of litigators on the biggest cases around with dedicated IT people fixing everything IT related, and consider myself to be relatively well aware of the perils of electronic documents. But some metadata slipped out with a document not so long ago, a comment which I could not see in the Word view mode I was in before I emailed it. It probably went unnoticed by my opponent, but a footer in a word document resulted in BHP — one of Australia’s then biggest companies — paying hundreds of millions of dollars to settle the Ok Tedi litigation after being convicted of contempt of court (see below for Julian Burnside‘s account of it). (The conviction was later set aside, but, alas, too late.) Here is a useful article from the American Bar Assocation which summarises the perils of not expunging the metadata generated by use of Word’s track changes feature of draft documents, with lots of links to technical help on the issue. And here is an article from www.discoveryresources.org linked to from that article which explores the issues well too. But now, back to the Ok Tedi Case, probably the best metadata horror story out there, but, I think little known outside Melbourne legal circles: Continue reading “A good summation of Microsoft Word metadata issues for lawyers”

NSW prosecutor’s computer repair leads to child porn suspension

A Sydney silk took his computer into work at the Department of Public Prosecutions to be fixed. The repairman mentioned the child pornography on the hard disk to his superiors, and the Deputy Senior Crown Prosecutor was suspended on leave with pay and has said he will plead guilty to a charge of possessing child pornography. He may lose his job, his status as a QC, and up to two years of his liberty. With thanks to Freedom to Differ.

Staying disciplinary proceedings as abuses of process

Update, 23 December 2009: Doubt is cast on the correctness of Hunt AJA’s comments by Hodgson JA, the other justices of appeal agreeing, in Council of the NSW Bar Association v A (2008) 72 NSWLR 236 at 249; [2008] NSWCA 164 ([40]).

Original post: The following passage from the NSW Court of Appeal’s decision in Lindsay v Health Care Complaints Commission [2005] NSWCA 356 (Hunt AJA, others agreeing) casts some doubt on whether a medical disciplinary tribunal presided over by a judge had power to stay a disciplinary proceeding as an abuse of process. The issue arose in the context of which the legislation provided that “The members of the Tribunal are to conduct an inquiry into any complaint … referred to it”, and then, later “It is the duty of a Committee and the Tribunal to hear inquiries and appeals under this Act and to determine those inquiries and appeals expeditiously.” As the Court noted, “Both provisions express the obligation of the Tribunal to exercise that jurisdiction in unusually mandatory terms”. Continue reading “Staying disciplinary proceedings as abuses of process”

Lawyer’s defamation suit against former client founders on absolute privilege

In Sexter & Warmflash, P.C. v Margrabe, 2007 NY Slip Op 00065, a woman hired lawyers to represent her and her brother in a dispute with a cousin. The lawyers charged a reduced fee but could charge a 50% premium upon resolution of the dispute. The dispute was settled, but the woman thought the lawyers were progressing too fast towards final resolution (and their premium payment) at the expense of her interests. She fired them and copied her brother in on her none-too-complimentary letter of dismissal, which she also sent to two other lawyers she had retained for second opinions. Essentially, she alleged a concurrent conflict between duty and interest, as well as incompetence. The lawyers sued her in defamation for at least US$1 million, and then represented themselves, a step which raises real questions in my mind about their strategic competence, one of the things criticised in the controversial letter. The case was summarily dismissed. The New York Supreme Court Appellate Division‘s statement of the law of absolute privilege is reproduced: Continue reading “Lawyer’s defamation suit against former client founders on absolute privilege”

Next election important for composition of the High Court

Kenneth Nguyen’s analysis in The Age about the importance, from the point of view of the composition of the High Court, of the next election, is worth reading. He says the next federal election is expected some time after September this year, the same month Callinan J must retire by. The Chief Justice must retire by August 2008, and Kirby J by March 2009. Kirby and Gummow JJ are the only two Labor government-appointed judges on the Court at the moment.

Mind you, sometimes these discussions suggest too close a correlation between the likely decision making of appointees and the predilections of the governments appointing them. Deane and Wilson JJ, both champions of indigenous issues, were Fraser Government appointments, for example, and both were powerful voices on social justice during Liberal Governments. Ron Wilson published the stolen generation report “Bringing Them Home” while Howard was prime minister, and William Deane was openly critical of the Howard Government after he was freed of the constraints of the office of Governor General. On the other hand “Liberal government” means something very different today from what it meant in the 1970’s: Malcolm Fraser has been a strident critic of John Howard, as has John Hewson more recently (though he thought Howard’s IR reforms did not go far enough…).

Solicitor refers costs dispute to VCAT’s legal practice list

In  Robert J Lawyers v Kirby [2006] VCAT 2609 A client complained about his solicitor’s fees. The Legal Services Commissioner was unable to  settle the costs dispute. The solicitor exercised his right to refer the matter to the Legal Practice List of VCAT. Unusual, but sensible, since the Legal Practice Act, 1996 empowers VCAT to give judgment, effectively, for outstanding fees, and that is what he got, after having 15% knocked off for what I would characterise as a rather technical breach of the Legal Practice Act, 1996’s costs disclosure rules. Continue reading “Solicitor refers costs dispute to VCAT’s legal practice list”

Latest mammoth loss of a chance exegisis: NSW med neg case

The latest novel written by a judge about the concept of loss of a chance is Halverson v Dobler [2006] NSWSC 1307. I suspect lawyers professional indemnity specialists spend too little time reading the doctors’ negligence cases. Though there seems to be some suggestion that loss of a chance as a concept is on the wane, especially in relation to personal injuries cases, and that loss of a chance should only apply to cases where conventional proof (on the balance of probabilities cannot be made out), that is not quite enough to persuade me to wade through the judgment.

Solicitor gets 4 months’ holiday for sharing receipts with unqualified conveyancer

In Legal Services Commissioner v DLM [2006] LPT 13, the solicitor was ordered to pay the costs of the prosecution, publicly reprimanded, and had his practising certificate suspended for 4 months. He was guilty of sharing receipts from his law practice with an unqualified conveyancer. He agreed with a former colleague, not legally qualified, that she would find clients, arrange finance for their purchase of homes, and that he would then complete the conveyancing work she had already commenced. She got $1,000, and he got $1,500 though separate bills were rendered. The Tribunal looked at the substance of the whole thing and found that in truth, there was a sharing of receipts contrary to the prohibition on lawyers sharing receipts from legal practice with non-lawyers, which is found in Queensland in the rules of professional conduct. The Chief Justice of Queensland, Paul de Jersey, characterised the arrangement, which, it must be said is somewhat difficult to follow from the reasons like this: Continue reading “Solicitor gets 4 months’ holiday for sharing receipts with unqualified conveyancer”

Lawyer doesn’t get admitted for taking the rap for boss’s red light infringement

Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338.

Kala Subramaniam (now Jackson) took the rap for a red light infringement notice addressed to Leigh Johnson, her criminal lawyer boss, maintaing the perjury in court on oath, bragged about it within the law firm she worked in sufficiently obnoxiously to convince one of her colleagues to wear a police wire and record an excruciating confession, got convicted under a special process for the mentally ill, appealed all the way to the High Court, got the conviction quashed on procedure associated with insanity, played the whole thing down in her application for admission, and managed not to get admitted as a result. I must admit to enjoying the schadenfreude. Continue reading “Lawyer doesn’t get admitted for taking the rap for boss’s red light infringement”

When is a solicitor not acting as a solicitor?

In Swart v Carr [2006] NSWSC 1302, the NSW Supreme Court’s Justice George Palmer engaged in a fairly earnest survey of cases addressing this question in the course of a decision about whether a solicitor was engaging in legal practice, and whether he was doing so within the definition of his professional indemnity insurance policy. The answer was yes on both counts, so the punters recovered the US$500,000 they thought had been lost. Continue reading “When is a solicitor not acting as a solicitor?”

Judge uses big word

President Mason chucked “tergiversation” into his judgment in Winnote Pty Ltd v Page [2006] NSWCA 287 at [39], handed down on 31 October 2006. A google search for the word in “pages from Australia” returns only 158 hits. What it means is “equivocation: falsification by means of vague or ambiguous language”. Jeepers! In a case about peat farmers out in the countryside who lost the trial, lost the appeal, and failed to get costs of the unsuccessful cross appeal. Now they have to buy a very big dictionary. Heartless judge.

Federal Court reiterates administration of justice as a ground for restraining solictiors from acting

Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404Justice Neil Young, who has just resigned after less than a year in the job as a Federal Court judge in order to return to the bar, took the exceptional step of restraining a solictor from continuing to act in order to protect the administration of justice in circumstances where the solicitor had acted for one joint venturer in relation to a meeting of the joint venture company which resolved to commence proceedings against the other joint venturer. That meeting had been controversial because it was held in the absence of the joint venturer the meeting resolved to sue, and the solicitor was likely to have to give evidence about it. There was the added problem that even if the company had properly resolved to commence the proceedings, the running of the proceedings would be frustrated by a deadlocked board. This post summarises the facts in a simplified form, and the outcome. The next post reproduces some of Justice Young’s discussion of the law.

Continue reading “Federal Court reiterates administration of justice as a ground for restraining solictiors from acting”

Bowman J suggests no power in Legal Profession Tribunal to reopen hearing

In K v Legal Services Board [2006] VCAT 2303 (see previous post) Bowman J was critical of, and did not follow Law Institute of Victoria Limited v Michel (T0211 of 2004), a decision of the Full Legal Profession Tribunal chaired by Judge Dee to grant a rehearing after having made a final order, on the basis that the solicitor had not received proper notice of the hearing. Judge Bowman suggested that the Full Tribunal was functus officio and in the absence of a statutory power to reopen the hearing, had no power to do so, having done its job and exhausted its jurisdiction in the process.

It is somewhat ironic that he was immediately asked to reopen his decision, decided that in order to do so, he would need to consider whether he was in fact permitted to do so by reference to the principle of functus officio, but then gave his decision in the reopened matter, explaining that it was unnecessary to determine whether he in fact had power to do so, since he was not inclined to change his decision.

This justification for doing so is not particularly attractive. Perhaps another analysis might have been that there is no res judicata in a finding that a tribunal has no jurisdiction, and though it might often be an abuse of process for a second application to be made in the face of such a ruling, the changed circumstance which occasioned him to reopen his decision (the Court of Appeal’s new decision in He v A & Co) was enough not to make what might have been treated as a second application an abuse of process.

Chief Justice realises legal system’s too expensive!

South Australia’s Chief Justice gave a talk recently on how the justice system is too expensive. It’s true. What I am very uncertain about is how much more expensive it is than, say, at the time of Bleak House. I mean, I think airfares are expensive, but they’re cheaper, comparatively, than they have ever been.