2015, not such a good year (part 4: domestic politics and refugees)

Domestic politics Speaking of Islamic head coverings, that most inappropriate speaker Bronwyn Bishop (see www.bronwyn.com.au) fell off the perch. Three weeks into Choppergate, Ms Bishop acknowledged that after commandeering a chopper at your and my expense to a Liberal fundraiser in Geelong of all places was ‘completely ridiculous’, leading to close analysis of her previous expense …

All-new High Court to hear advocates’ immunity appeal

The plurality judgment in the last decision of the High Court squarely about the advocates’ immunity was written by Chief Justice Gleeson and Justices Gummow, Hayne and Heydon JJ.  They have now retired from the Court.  As have the other judges who constituted the Court in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 …

Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions

The Federal Court has given a landmark decision about regulatory prosecutions.  In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed …

Can an administrative agency determine that a crime has been committed?

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, the High Court considered when an administrative agency can make a determination of the commission of a crime.  The case arises out of the sorry saga of two Today FM presenters impersonating the Queen and Prince Charles in inquiries of the hospital …

More on the constraints on the use of information obtained under statutory powers

In Flori v Commissioner of Police [2014] QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force.  A criminal investigation was launched as a result of the findings of …

WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline

Traditionally, the law of professional discipline has differed from the law of negligence in three profound ways.  First, its aim is the protection of the public (though the policy in favour of protecting the reputation of the profession grossly infects the purity of this proposition in most analyses).  Secondly, it is about personal wrongdoing.  Statute …

The costs consequences of failing to prove a responsibly advanced allegation of fraud

The irresponsible advancement in litigation of allegations of fraud undoubtedly triggers the jurisdiction to award indemnity costs and even to make personal costs orders: White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, approved on appeal at (1999) 87 FCR 134, discussed in this post. But what about responsibly advanced, but …

WA disciplinary tribunal says it’s misconduct for a doctor passing a crash not to stop and offer assistance

Update: This decision was reversed on appeal: Dekker v Medical Board of Australia [2014] WASCA 216.  The Court of Appeal did not find that there was no duty to assist.  Rather, they found that there was insufficient evidence before the disciplinary tribunal for it to find the existence and acceptance in the profession of such a …

Latest on assignability of tortious professional negligence claims

A man tried to sue for professional negligence in his capacity as an assignee of the alleged victim of that negligence.  The case was determined on a limitations point, but in Kovarfi v BMT & Associates Pty Ltd [2012] NSWSC 1101 Justice McCallum of the Supreme Court of NSW gathered together the authorities in relation to …

Important new case on when retainer by multiple clients will be taken to be several rather than joint

I have always been a bit dubious about the proposition to be found in the texts that in the absence of specification one way or the other, a multiple retainer is presumed to be a several retainer (so that the clients are severally responsible for their fair share of the costs) rather than a joint …

Accord and satisfaction as a defence to a suit for taxation

[Edited and updated 13.2.12] I have two taxations at the moment where accord and satisfaction is pleaded as a defence, in proceedings governed by the Legal Profession Act 2004 (Vic).  In the first, the client and the solicitor cut a deal in relation to costs, and the client subsequently sought to tax the costs.  In …

More on the need for specific instructions before commencing proceedings on behalf of others

Update: See now Daniel Warents, ‘An Unwarranted Approach: Costs Orders Against Solicitors Acting Without Authority’, a detailed and learned review of the cases: link. Update: See now Doulman v ACT Electronic Solutions Pty Ltd [2011] FMCA 232.  A solicitor accepted instructions from a fellow solicitor to recover fees allegedly owing by a client.  The proposed …

Appeal rights against personal costs orders against lawyers

Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd [2011] NSWCA 128 examines the nature of the appeal rights of non-parties against whom personal costs orders are made.  In that case, the unfortunate person against whom such an order was made was a liquidator.  But in the course of his …

Chief Justice Elias’s argument for criminal standard in disciplinary prosecutions

In Z v Dental Complaints Assessment Committee [2008] NZSC 55, which I wr0te about in my last post, the Chief Justice of New Zealand, Dame Sian Elias, argued in a powerful dissent that the standard of proof required in disciplinary proceedings should be the criminal standard, as it is in England.  This is her argument, …

Supreme Court overturns 2008’s biggest discipline decision

Update, 31 January 2012:  See now Council of the NSW Law Society v Simpson [2011] NSWADT 242 re the meaning of ‘misappropriation’.  It was on this point that Justice Bell in Brereton overturned VCAT’s decision: they had not recorded making a finding of dishonest intention. Original post: Justice Bell yesterday allowed an appeal by Michael …