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.

Peter Faris QC profiled by The Age

Update: 26 December 2007 And again, this time on the subject of drink.  Peter Faris used to drink a lot of it. Then one day he stopped. Cold turkey.

Original post: You will have noticed that this blog is a blog in part about lawyers, with a bias towards Victorian lawyers. Here is an article about Peter Faris QC, a former chairman of the National Crime Authority, and founder of the Fitzroy Legal Service who “in the 1960s and ’70s added long hair and went to court in brown, elastic-sided boots, North Melbourne footy socks and a pinstriped morning suit, a sartorial snub at the dress code.” Here is his blog.

Federal Court’s scheme for costs against solicitors personally

In Tran v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2006] FCA 199, Justice Weinberg ordered a solicitor to pay costs personally. Justice Weinberg said:

“I am in no doubt that the applicant’s solicitor had no idea what he was talking about when he foreshadowed with me, at a directions hearing … that the applicant would be challenging the constitutional validity of certain provisions of the Migration Act.”

His Honour had warned him that if it turned out to be without merit, personal costs liability might follow. When notice of a constitutional issue (“all but incoherent”) was given, the Minister retained the Australian Government Solicitor in place of Clayton Utz, occasioning costs thrown away. The way his Honour described the constitutional argument, which the solicitor struggled to articulate for only a brief moment, suggests that it was reminiscent of Denis Denuto’s “it’s the vibe” speech in The Castle. Continue reading “Federal Court’s scheme for costs against solicitors personally”

An incomplete list of Victorian admission cases

As noted by Justice Chernov in Board of Examiners v XY [2006] VSCA 190:

  • Frugtniet v Board of Examiners (No 2) [2005] VSC 332 (Gillard J)
  • Frugtniet v. Board of Examiners [2002] VSC 140 (Pagone J)
  • Fraukes v. Board of Examiners (Unreported, Supreme Court of Victoria, Phillips, J., 8 March 1989)
  • In the matter of Lisa Bronwyn Mann (Unreported, Supreme Court of Victoria, Nicholson, J., 9 December 1987)
  • Nicholls v. Board of Examiners [1986] V.R. 719 (Ormiston, Fullagar and Vincent, JJ.)
  • In the matter of Beverley Honig (Unreported, Supreme Court of Victoria, Nicholson, J. 28 August 1986)
  • Board of Examiners v. Whalen [1983] 1 V.R. 437
  • Re Miller [1979] V.R. 381
  • Re Warren [1976] V.R. 406 (Young, C.J. and Gillard and Anderson, JJ.)
  • Cash v. Board of Examiners [1972] V.R. 426

Excess of definacronymisation (”EOD”)

Lord Justice Mummery’s judgment referred to in the previous post is admirably short at 34 paragraphs (and the other two judges agreed — very un-Australian) but it it is an exemplar of the worst excesses of EOD, an excrescence on legal writing which achieves precisely the opposite (confusion) of that which it has an air of promoting (clarity). If I were the Lord Chancellor, I would direct that no pleading, affidavit, or judgment contain any TLAs. Or FLAs for that matter. Definitions in legal writing are out of control. I would also direct that any defined term which is not again used in a document render its draftsman liable to a fine payable to charity, and that a lesser fine apply to any definition which the man on the Clapham omnibus would consider reasonably unnecessary. I would task the recipient charities with enforcement and suggest they develop a robotic text crawler which would search the online annals of legal writing for the work of those who feel it necessary to define, say, Ladro Pizza Pty Ltd as “Ladro Pizza” where there is no sense of “Ladro Pizza” which could be confused with the sense of it as the shortening of the name of the company (as would be the case if that company owned the ridiculously popular Fitzroy pizzeria named “Ladro”). Consider this abomination of legal writing from Lord Justice Mummery’s judgment: Continue reading “Excess of definacronymisation (”EOD”)”

Court of Appeal rules on VCAT’s implied jurisdiction to reinstate struck-out proceedings

Justices Chernov, Nettle and Ahley JJA handed down the Victorian Court of Appeal’s judgment in The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146 on 7 July 2006, one of the 1 in 1000 decisions of VCAT which are appealed (according to a speech made by its President). They found that VCAT’s power to  override by direction the basic principle that VCAT files are able to be inspected by the public meant that VCAT had an implied power to reinstate proceedings for the purpose of  exercising that power in proceedings which were otherwise long disposed of. Continue reading “Court of Appeal rules on VCAT’s implied jurisdiction to reinstate struck-out proceedings”

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.

Insanity not a defence to professional discipline proceedings

Legal Practitioners Conduct Board v Ardalich [2005] SASC 278

The solicitor referred to in the next post could not escape a finding of unprofessional conduct because of his mental state, even though the species of unprofessional conduct alleged against him was the commission of serious criminal offences to which insanity was a defence. The South Australian Court of Appeal explained: Continue reading “Insanity not a defence to professional discipline proceedings”

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”

Justice Gillard gives the Law Institute a bloody belting

SPB v Law Institute of Victoria [2005] VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c)

Solicitors who read the back pages of the RPA News (dubbed the “sports pages”) well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public excoriation of a regulator as in this decision, however. His Honour railed especially about the adverse finding made on the papers without interviewing the former client or having her confirm her allegations by statutory declaration.

Continue reading “Justice Gillard gives the Law Institute a bloody belting”

The Law Institute exercised jurisdiction it didn’t have on receiving a pecuniary loss dispute resolution request from a bankrupt

Said Georges’ Case [2006] VCAT 414

Upon bankruptcy certain causes of action vest in the trustee in bankruptcy, and others do not: see ss. 58(1) and 116(2) Bankruptcy Act, 1966. This dispute vested in the trustee upon the client’s bankruptcy, but the trustee wrote the client a letter consenting to “the bankrupt’s pursuit of the dispute with [the solicitor] by lodging the appropriate applications to the Legal Profession Tribunal”. Mr Butcher found that though the trustee probably had the power to engage the bankrupt client to pursue the claim for the benefit of the estate, but “the letter does not indicate to me that such was the intention of the trustee”, and dismissed the dispute.

Evidently, this was a matter overlooked by the Law Institute which blithely exercised jurisdiction it did not have, to the detriment not only of the taxpayer’s pocket but of the solicitor’s.

Bernard Sheehy was for the solicitor, and Alan Hebb for the Tribunal.

Want of jurisdiction re costs of matrimonial litigation extends to Magistrates’ Court cases

A’s Case [2006] VCAT 111

It is a well established but frequently unknown proposition that by virtue of the inconsistency of the federal scheme for the disputation of the costs of family law litigation proceedings provided for by the Family Law Rules 2004 and the costs disputes procedure under the Legal Practice Act, 1996, the latter yields to the former, with the result that the Legal Practice Act, 1996 does not apply, and neither Professional Standards nor the Tribunal has any jurisdiction.

This decision establishes only that it makes no difference if the Magistrates’ Court hears a family law matter exercising federal jurisdiction, since rule 19.40 establishes that the Family Law Rules extend to the costs of a lawyer conducting a case in a court of summary jurisdiction. The Magistrates’ Court hears matters under Part 7 of the Family Law Act, 1975, which deals with matters concerning children.

(So the applicant lost her claim for $172. One has to wonder whether a filing fee refundable on success might not sharpen the minds of applicants.)

Alan Hebb appeared for the Tribunal; there were no appearances for or by the parties.