The Australian Professional Liability Blog

Today is World Environment Day.  It prompted me to tidy up, in a minimal kinda way, and publish this hitherto unfinished and unpublished blog post from the ‘2019, Not Such a Good Year’ series.  Of course, 2020 brought a new perspective on things.  But the environment has kept going to shit, as I will no doubt expand upon in a future post.

After 2.2 million other Australian homes went solar, I eventually got an army of solar panels in 2019, the biggest ever year for solar installations in Australia, and greatly enjoyed harnessing the sun to defeat itself through airconditioning. (Two great long reads about the pernicious cycle of (non-solar powered) airconditioning here and — damn Qatar’s bad — here.)

But other things to bring cheer were mainly predictions, proposals and plans (see this post).

An area bigger than Scotland, more than a Denmark in NSW alone, was burnt, much of it forests, estimated to result in the deaths of billions of birds, mammals and reptiles alone, possibly resulting in several species’ extinctions. Maybe three trillion beetles from just one family, Staphylinidae, were incinerated. Some species of much-loved Christmas beetles may have been extinguished. Some shocking images of the detritus of Mallacoota’s once-cacophany of birds were published by The Age, but I managed to get 80 kg of wild bird seed to my mates in Mallacoota by boat to help feed the many birds he says have returned.

It was in fact an extravagantly bad year for the environment, especially Australia’s bits of it. Japan even recommenced whaling (though only in Japanese waters) after Australia single-handedly had them banned only a couple of years ago by the International Court of Justice from the Southern Ocean.

Continue reading “2019: Not Such a Good Year (Environment, Part II)”

Cars Holden

Americans  A grotesque pathogen the actions of which had at the time already killed 200,000 Americans contracted COVID-19, and described it as ‘a blessing from God’.  Though thoughts and prayers around the world were with the virus, Trump prevailed.  By the end of the year, one in every thousand Americans had died of COVID-19, more than a 9-11’s worth — more than 3,000 — a day some days.  COVID-19 is predicted to kill more Americans than died in the second world war, up to 450,000.  One of its probable victims was Rommel Broom, who was on death row following a failed attempt to kill him by lethal injection in 2015.

Lawyers Arch conservative Antonin Scalia’s progressive opera buddy Ruth Bader Ginsburg‘s end of life ambition to survive the end of the Trump administration so as to prevent her replacement by an ultra-conservative Trump appointee was cruelled by pancreatic cancer.  Truth be told, his incompetence was so great that he didn’t really actually do much, compared to the opportunity he had to do it, but POTUS did manage to stack SCOTUS with three new conservatives.  The third was Catholic cult member Amy Coney Barrett, previously appointed to the Seventh Circuit by Trump, hurriedly confirmed in the last days before the US election.  The composition of the Court is a matter for Congress and there is talk of increasing the number of justices in the Biden term so as to allow Democratic appointments.  But the composition of the Supreme Court is not the only issue, since intermediate appeal judges provide ultimate resolution for most cases, and Trump has appointed 51 of 179 active circuit court judges, mostly white blokes, lifetime appointments, with a mediation age of 48, nearly one-third of the entire bench in four years (c.f. Obama 55 and Bush 62 each over 8 years and I suspect Trump’s appointments were far less meritocratic than even Bush’s). Continue reading “2020: Not Such a Good Year (Deaths)”

In Arya v TD [2020] VCAT 923, Member Tang, a former President of the Law Institute now a full-time member of VCAT, had to decide what were the fair and reasonable costs (in the Legal Profession Uniform Law sense of that phrase) of more than 11 hours’ work by a Victorian barrister of 18 years’ call. The work product was a 23 page memo of high quality advice in a field in which the barrister had literally written the book. He had entered into no costs agreement and had given no costs disclosure, in a direct access brief.

Because the case reached VCAT via a costs dispute before the Victorian Legal Services Commissioner, there was an additional layer of fairness and reasonableness to be considered, compared with the same analysis in a taxation: s. 99 of the Application Act associated with the Uniform Law required the Tribunal to fix the costs in an amount which was ‘fair and reasonable in all the circumstances’, an invitation to palm tree justice if ever I heard one.

The barrister’s fee slip was for $10,175 calculated at $595 per hour reduced on a but say basis to $9,900. The fair and reasonable cost of the work was just over one-third of the larger figure, or $3,500, found Member Tang.

Until 2015, solicitors and barristers were entitled in the absence of a valid costs agreement to costs on the relevant court scale or, for non-contentious business, on the Practitioner Remuneration Order. Where there was a void costs agreement that entitlement was capped at the amount which would have been recoverable under the costs agreement. Since the introduction of the Uniform Law, how a lawyer recovers fees in the case of a void costs agreement is not spelt out, but since no one can ever recover fees from persons other than ‘commercial or government clients’ which are not ‘fair and reasonable’, the fees recovered certainly have to meet that criteria.

In those Uniform Law taxations where the Costs Judge has figured that the costs disclosure defaults might have been opportunistically seized upon by clients who had not been materially prejudiced by the defaults in question, Associate Justice Wood has been finding that the fair and reasonable costs may be prima facie calculated by reference to the void costs agreement in question. See, e.g., Johnston v Dimos Lawyers [2019] VSC 462; Bennett v Farrar Gesini Dunn Pty Ltd [2019] VSC 744; Cameron v Thomson Geer [2020] VSC 75.

What this case demonstrates is that, in the case where a client really has been sucked into something they might not have signed up for if they had been given appropriate disclosure in advance, the fair and reasonable costs may be considerably less than the reasonable rate multiplied by the number of hours spent, and significant ‘penalties’ for non-disclosure and inutility may be operative.

By virtue of the direct access relationship between the barrister and the solicitor, the same law should apply in cases involving a solicitor and client.

Continue reading “A case under the Uniform Law about a barrister who had no costs agreement and gave no costs disclosure”

Justice Blue’s clear and thorough reasons in Bell v Deputy Coroner of South Australia [2020] SASC 59 usefully rehearse and summarise the law relating to the privilege against penalties, its application in non-curial settings, and the circumstances in which an intention will be imputed to parliament to abrogate the privilege, including in the situation where express provision is made in relation to the separate and distinct privilege against self incrimination. His Honour found at [135] – [195] that:

• the Coroner’s Court is a court of record, so it is not a non-curial setting for the purposes of penalty privilege analysis;
• there is a tension in the dicta of the High Court as to the applicability of the penalty privilege in non-curial settings which did not need to be decided in this case;
• the will of parliament is an abstract concept and is not ascertained by speculating about what was probably going through parliamentarians’ minds (at [175]);
• it is wrong to say that where specific exceptions by reference to common law privileges are given by statute to a statutory obligation to comply with a power of compulsion, other statutory privileges should be taken by implication to have been abrogated;
• rather, it is correct to start from the proposition that common law privileges are not intended to be abrogated otherwise than by clear words or necessary intendment;
• s. 23 of the Coroners Act 2003 (SA) (reproduced below) did not impliedly abrogate the privilege against penalties: parliament legislated specifically in relation to the privilege against self-incrimination out of an abundance of caution ([183]), and the fact that it did not also do so in relation to the penalty privilege is neither here nor there.

A second set of reasons, including in relation to costs is at [2020] SASC 77.

Continue reading “Powers of compulsion and the privilege against penalties”

Here is my preliminary attempt at consolidating all the High Court cases about lawyers in one place. If I’ve missed any, let me know; it’s a work in progress.

Re Coleman (1905) 2 CLR 834; [1905] HCA 19 The Court gave the following judgment, about a NSW solicitor who had attempted to engage in what sounds like a fraudulent scheme to defeat a client’s creditor and been suspended from practice for 12 months: ‘This is not a case in which special leave to appeal should be granted. Looking at all the circumstances of the case we can see no reason to doubt that the decision of the Supreme Court was substantially correct. That Court was of opinion that the applicant had been guilty of professional misconduct which merited punishment, and we see no reason to differ from them. That being so, it is difficult to see how we can properly interfere with the exercise of the Court’s discretion in inflicting punishment upon one of its own officers. In such cases the nature of the punishment is a matter entirely within the discretion of the Supreme Court itself.’

The decision has been cited only in Re Daley, below.

McLaughlin v Daily Telegraph Newspaper (1906) 4 CLR 548; [1906] HCA 78

Re Daley (1907) 5 CLR 193; [1907] HCA 32 The Court declined to grant to a Sydney solicitor special leave to appeal against his suspension from practice for 18 months for making a fraudulent representation to counsel to induce him to accept a brief for which he went unpaid. The Court, applied Re Coleman, reiterating it was a matter for the Supreme Court of NSW.

The decision has been cited only by Tasmanian cases, as an illustration of the use of the word ‘punishment’ to describe the orders made in disciplinary proceedings.

Continue reading “All the High Court Cases About Lawyers”

In a recent post, I provided a case note of the High Court’s decision in Barwick v Law Society of NSW (2000) 169 ALR 236. This rather workmanlike post looks at decisions which have applied it, and Barwick-related legislative developments in NSW and elsewhere not replicated in Victoria, which have sought to undo the strictness of Barwick, some but not all of which are now with us in Victoria through the Legal Profession Uniform Law.

But it notes that Melbourne’s legislators have in the main signally not taken up the NSW penchant for passing provisions ever more generous to the State with regard to allowing matters to be prosecuted whether or not they were the subject of a complaint or an investigation which was authorised by the relevant legislation and played by the rules.

Perhaps that is because in relation to these questions the practitioners of Victoria — my clients excluded of course — have been inexplicably more supine than, or the Victorian disciplinary tribunals not as punctilious as, their Sydney counterparts such that the need for the provisions has not impressed itself on the minds of our parliamentarians.

But perhaps it is because Victoria thinks that in the context of the battle between the vast resources of the state and a citizen faced with prosecution in which costs of scores and hundreds of thousands of dollars are regularly ordered, against which the citizen may not obtain any insurance if s/he is a solicitor, the State should be encouraged to play by the book by the prospect of its prosecutions falling over if they don’t. After all, if the first prosecution falls over, they can usually go back and do it again, playing by the book.

Continue reading “Cases applying Barwick’s Case, and related legislative developments”

As I mentioned in a couple of recent blog posts (here and here), I gave a talk to the Junior Bar Conference in 2017, so what follows is a few years old now. Youngsters were invited to ask questions in advance by some secret process, and one anonymous young thing asked the question ‘What can barristers charge for?’, which I thought to be an odd question indeed. But being an earnest fellow, I answered it. As follows:

Continue reading “What can barristers charge for?”

Coming up soon is my summary of 2019 from an environmental perspective (awful, worse than ever). It was the world’s second hottest year, Australia’s hottest and driest year ever, the ocean’s hottest year. And Australia’s greenhouse emissions kept on going up. But there was some good-ish news, generally in the form of proposals and predictions, which I should get out of the way first before returning to curmudgeonliness.

1. The distinguished University of Melbourne economist, Professor Ross Garnaut, had Super-Power published by Black Inc. He was Prime Minister Hawke’s economic adviser, and a former Chairman of a bank and a gold miner, so he’s not exactly a communist. As Australia’s ex-Ambassador to China, he knows that country well too. The book is perfectly briefly summarised on the 7am podcast here (or in a less digestible one hour lecture by Prof Garnaut here). He says:

Continue reading “2019: Not Such a Good Year (Environment, Part I)”

As mentioned in my last blog post, I gave a paper to the Junior Bar Conference in 2017 which I titled ‘Tips on Costs and Fees’, so what follows is a couple of years old. Tip no. 2 was ‘Know what to do when the question of a non-party costs order arises’.

Continue reading “What to do when the question of a non-party costs order against counsel arises”

I gave a paper to the Junior Bar Conference in 2017 which I titled ‘Tips on Costs and Fees’, so what follows is a couple of years old. Tip no. 1 was ‘Be all over the costs proportionality overarching obligation’.

Continue reading “The Costs Proportionality Overarching Obligation”

I had a good enough 2019. I enjoyed interesting work, went on a trip to Singapore, Bangalore, Mysore, and Mangalore (no kidding), spent a magical Easter in Mallacoota where I have holidayed since I was a schoolboy, and enjoyed an eccentric roadtrip involving a lot of wheat and barley which took in Tittybong, Rainbow, Warne, Brim, Sea Lake and my favourite pub, the Victoria Hotel in Dimboola. Furthermore, it was suddenly insanely cool to play the flute. Jean-Pierre Rampal and James Galway could only marvel at the excessive fame of Time’s entertainer of the year, the classically trained flautist Lizzo who, it is said, also twerks, raps and sings, and is apparently an icon of a year which suddenly saw full figured women come into their own.

But 2019 did not treat well Cardinal Pell, Julian Assange and other journalists, the climate problem, China, forests, or white leftist politics.

Three interviews were notably illustrative. First, Andrew Bolt’s hectoring but nevertheless excruciating interview of Gladys Liu, the Hong Kong born federal member for Chisholm, who professed to have no recollection of her long associations with Chinese Communist Party fronts, and seemed not to want plainly to condemn the building of military bases in the middle of the South China Sea. It was part of an annus horribilis for China’s image abroad.

Second, Emily Maitlis’s interview of the Queen’s child, Prince Andrew, reminiscing about his friendship with the late alleged gigolo Geoffrey Epstein, which got him sacked from royal duties.

Third, the former accountant and former Deputy Prime Minister Barnaby Joyce’s interview of himself in his Christmas message, bizarrely predicting in relation to the climate emergency of which he is an architect that if we don’t respect ‘the higher authority, beyond our comprehension, right up there in the sky,’ ‘then we’re just fools, we’re going to get nailed’. The climate change enthusiast got 55% of the primary vote in his rural seat in this year’s federal election. Presumably his former media adviser and, as of 2019, mother of the 6th Barnababy, was not consulted about the Christmas message.

In response to Mr Joyce’s video, God sent the apocalypse and Prime Minister Morrison secretly went on Hawaiian holiday, (Fiji, where he holidayed in May was presumably no longer an option since he seriously pissed them off in August), before fleeing back to the Canberra bubble when the holiday was outed, sent in the armed forces and reservists to the initial displeasure of the firies, and promptly made a political tv ad celebrating what he had only been dragged reluctantly into by public opinion.

First, though, the deaths of 2019. Australian icons passed on: Bob Hawke, who latterly amassed a wealth of more than $50 million as a China consultant, Tim Fischer, Margaret Fulton, Clive James, Les Murray, Dimmey’s (aged 166), the Uluru climb (35 climber deaths later).

Continue reading “2019: Not Such a Good Year (deaths)”

The other day, the Supreme Court granted an application to dismiss a summons for taxation on the basis that, as a solicitor in sole practice, the applicant was a ‘commercial client’, to whom the costs provisions of the LPUL (including the right to seek taxation as between solicitor and own client) did not apply.

In the course of doing so it rejected an argument that she was not a commercial client because, in seeking representation in her matrimonial dispute, she was not wearing her professional hat; she was just a woman who needed a family lawyer who happened to be a solicitor.

Often enough, I come across lawyers who see distinctions between themselves and their law practices, even though they are sole traders. I have seen individuals purport to retain themselves qua law practice, and think they have to give costs disclosure to themselves. Sole traders sometimes refer in correspondence to ‘our Mr Soandso’, writing in the first person plural. One memorable former practitioner, who worked out of his home and had no staff, called his firm ‘Horak, Frankovich, Rose & Cross, Lawyers and Public Notaries’.

Continue reading “Lawyers who are ‘law practices’: a distinction between the private and the professional hats?”

Sir Garfield’s eldest son Ross convinced the High Court to prohibit his further prosecution in a disciplinary tribunal. Though there had been no procedural unfairness to him, a disciplinary investigation by the Law Society hadn’t followed the rules, such that the Tribunal did not have jurisdiction: Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236. His counsel was Major-General Paul le Gay Brereton, now a judge of the Supreme Court of NSW. In this companion post, I consider the legislative developments in relation to the provisions in question post-Barwick, in NSW, and the authorities which have applied Barwick.

Continue reading “Barwick v Law Society of NSW: a case note”