A well-known Melbourne solicitor sued his clients for $165,000 in fees for helping them buy a car dealership. Six years after a dinner with the clients in St Kilda, he sued his dinner companions, claiming to have entered at the dinner into an oral agreement that he would receive 1% of the purchase price of a Cairns car dealership upon settlement. Oral costs agreements under the Legal Practice Act, 1996 were void, but the solicitor claimed that he was not doing legal work, but was engaged as a business consultant. He had not rendered a bill for the fees before suing. These problems with his claims were not decided, because Justice Hollingworth found the alleged agreement not to have been made out. There was no document which recorded the alleged oral agreement, and none which corroborated it in any meaningful way. More than one hundred times he had acted for the clients on an orthodox basis, but this, he claimed, was the third percentage based fees agreement. Justice Hollingworth found that the two previous such agreements claimed by the solicitor had not in fact been made, so the question was whether this fee agreement was the odd one out, and described aspects of his evidence as ‘unsatisfactory’. After it was apparent he and the clients disagreed about whether there was a 1% fee agreement, the solicitor secretly recorded a conversation in which he ‘repeatedly tried to get [one of the clients] to admit the existence of the 1% agreement’. Though on her Honour’s construction of the recording, he failed in that endeavour, he nonetheless tendered the recorded evidence at trial. The solicitor lost; he had grabbed a tiger by the tail. The decision is EV v King [2010] VSC 80.
Evidence paper, part I (introduction to the new law)
Now I know my posting on the new Evidence Act has been a bit sporadic, and disordered, but now I’ve written my research paper on the subject, and whereas before I was subjecting you to the offcuts I discarded along the way, now I am going to subject you to a serialised version of the essay, probably embroidered a bit as I go, and with the errors pointed out by Associate Professor Palmer expurgated. I appeared in my first trial involving the new laws the other day, in the County Court. It was all very anti-climactic: the new Act did not even get a mention. Anyway, for what may seem like the third time, an introduction to the new laws of evidence:
‘Victoria’s Evidence Act, 2008 commenced on 1 January 2010. How it will affect civil litigation remains to be seen. Because the common law, modified by the Evidence Act, 1958 often either defied common sense so profoundly or was inaccessible in intelligible form, there developed a substantial body of civil litigation in which the rules of evidence were not in fact applied, and some other fuzzy, unspoken rules varying between jurisdictions and even lists, were applied instead. Continue reading “Evidence paper, part I (introduction to the new law)”
Honest and reasonable mistake as a defence to disciplinary charges
Senior Member Howell decided last year in Legal Services Commissioner v RMB [2010] VCAT 51 that there is a mens rea element to professional discipline offences under the Legal Profession Act, 2004, in that there is a defence of ‘honest and reasonable mistake’. That fascinates me, since under the previous Act, misconduct and unsatisfactory conduct was often delineated by the presence or absence of knowledge that the conduct engaged in breached a norm of conduct. Conduct in ignorance of its wrongfulness was punishable as unsatisfactory conduct. Now, though, there is no knowledge element built into the definitions of the 2004 Act, and there seems to be no particular reason why the concept of honest and reasonable mistake which has been imported from the criminal law, might not apply equally to cases of professional misconduct and unsatisfactory professional conduct. Continue reading “Honest and reasonable mistake as a defence to disciplinary charges”
Proportionate liability and arbitrations
A Clayton Utz ‘Project Insight’ is worth a look. It considers whether the proportionate liability schemes around the country have operation in arbitrations. The answer, according to Tasmania’s Supreme Court in Aquagenics Pty Ltd v Break O’Day Council (No 2) [2009] TASSC 89 is — Yes. The reason is that there is an implied term in the arbitration contract that the arbitrator will grant the relief which would be available in a court. As the authors Owen Hayford and Audrey Echevarria point out, the implication of an implied term may be prevented by an inconsistent express term. I am aware of a passing consideration of the matter in Victoria. In Wealthcare Financial Planningn Pty Ltd v Financial Industry Complaints Service Ltd [2009] VSC 7, Justice Cavanough noted: Continue reading “Proportionate liability and arbitrations”
Lawyers’ duty to speak proper and be nice like
Update, 8 April 2010: The full-text version of Ms Jones’ article is freely available here. See also this article published on the Queensland Law Society’s impressive website.
Original post: Nicky Jones has written a scholarly article about lawyers’ duty to remain courteous: Lawyers, Language and Legal Professional Standards: Legal Services Commissioner v Turley [2008] LPT 4, published at (2009) 28(2) The University of Queensland Law Journal 353-359. Volume 28(2) is in fact a special edition of that journal, entitled ‘Australian and New Zealand Lawyers: Ethics and Regulation’, and I am seeking out a copy.
For a scholarly treatment of what is and is not nice, like, I recommend the relevant bit of Julian Burnside QC’s Word Watching. Ms Jones’ writing gives me a chance to link to one of my favourite legal documents, a submission by a Colorado lawyer to strike out a criminal charge against a young man who allegedly called his principal a ‘fucker, a fag, and a fucking fag.’ Here is a flavour:
‘In order to provide a context for the alleged crime, we must first examine the history of Fuck and its evolution in society. Fuck’s earliest recorded use is prior to the year 1500 from the English-Latin poem Flen Flyys: “Non sunt in celi quia fuccant uuiuys of heli,” which traslates to “they are not in heaven because they fuck the wives of Ely.” See www.wikipedia.org/wiki/fuck. Continue reading “Lawyers’ duty to speak proper and be nice like”
Changes to legal professional privilege operate retrospectively
They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now going to apply in relation to any particular communication. If the Tax Man, or the Legal Services Commissioner, compels you to produce documents, the common law will apply. If you produce them, the common law will determine whether the production amounts to a waiver. If the investigation leads to court (but not VCAT) proceedings proceedings, to which the new law will apply, you might be compelled by subpoena to produce documents you successfully resisted producing in the investigation pursuant to the common law. Furthermore, in those proceedings, the Court will decide for itself, under the new law, whether the production to the Commissioner in the investigation amounted to a waiver or not.
The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments. Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial. But there are differences too: Justice Byrne’s decision referred to below confirms it.
I blogged about the transitional provisions for the new legislation here. It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act. There is a presumption in statutory interpretation against the retrospective taking away of accrued rights. But there is no such presumption in relation to changing procedures for the vindication of rights.
Someone has actually already run this esoteric argument. In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta: Continue reading “Changes to legal professional privilege operate retrospectively”
Previous infractions of same rule not relevant to distinction between professional misconduct and unsatisfactory professional conduct
In Legal Services Commissioner v R-MB [2010] VCAT 182, Senior Member Howell found a repeat offender had failed to comply with a demand from the Legal Services Commissioner for a written explanation of conduct the subject of a complaint. The Bureau de Spank argued that the infraction should be regarded as professional misconduct rather than unsatisfactory professional conduct, as contended for by the practitioner. One of the reasons put forward was that the solicitor had previously been found guilty of the same thing. The Bureau suggested there were authorities in support of this proposition, but did not identify them. Neither party appears to have brought to Senior Member Howell’s attention an authority decided by another member sitting in VCAT’s Legal Practice List this year which suggested ‘prior offences’, or their absence was irrelevant in the determination of exactly this question. On that occasion, VCAT said:
’15 I have had some difficulty deciding whether the conduct of the applicant is unsatisfactory professional conduct or professional misconduct. Part of the difficulty has been whether I should take into account the fact that the respondent has had no previous determinations made against him of a disciplinary nature. In my view, that is something that should be taken into account on the matter of penalty but it should not be taken into account as a matter of what charge for which he should be found guilty.
16 I compare this to the hearing of a criminal matter, although it is a disciplinary matter and something entirely different, but the similarity is that a criminal court would not look at prior convictions until it had decided what breach or what act had been committed. In this particular instance, it is appropriate that I should not look at past conduct until I have decided what act has been committed, ie whether it is unsatisfactory professional conduct or professional misconduct.’
Now it’s my turn not to identify the authority, but only because I was in it, and I don’t blog my own cases.
The rule against duplicity in disciplinary charges
‘Quis custodiet ipsos custodes?’, a Melbourne lawyer’s criminal law blog, explained the criminal law rule against duplicity here. I am not much interested in it from a professional discipline point of view, and it seems the courts tend not to get over-excited about it either (though the lawyer made some progress with it in Law Society of NSW v Shalovsky [2008] NSWADT 14). In the course of my readings about other things, I came across the Court of Appeal’s discussion of the principle as applied in a professional discipline prosecution of a lawyer in Woods v The Legal Ombudsman [2004] VSCA 247. Despite the numbering below, the first paragraph is in fact [39]:
- The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law.[11] It seems plain enough that the basis for the rule is fairness to the defendant in the sense of his or her being informed, at the very outset, what is the specific offence which is being alleged and, if it is established, to have certainty of what charge he or she has been found guilty. Thus, as Evatt, J. explained in Johnson v. Miller[12]: Continue reading “The rule against duplicity in disciplinary charges”
‘Aggravated homosexuality’ to be punishable by death
Here is a link to Uganda’s Anti-Homosexuality Bill, 2009. It is proposed that:
- men who have sex with other men ‘serially’ are to ‘suffer death’;
- it would be a crime to rent a house to a gay;
- a woman who touches another woman with a view to seducing her will suffer life imprisonment; and
- speech in favour of homosexuality will attract a sentence of imprisonment for seven years.
There are obviously some seriously sick puppies at work in the Ugandan government. Mind you, it seems as though it’s principally the brainchild of a born again Christian MP. It’s a pity, because Uganda was once a pretty cool African nation, before and after Idi Amin. Now it’s the kind of place where torture is widespread, opposition leaders get arrested, their show trials get stormed by heavily armed government thugs, and 20,000 children have been abducted to work as child soldiers and slaves, forcing many of the rest in the North to leave their villages every evening to sleep in the forest, churches or schools — the ‘night commuters‘ fleeing the Lord’s Resistance Army. More information on the bill here.
Justice Ian Ross VCAT’s new President
According to the Victorian Bar, the Supreme Court’s Justice Ross has been appointed President of VCAT. That does not mean he is no longer a Supreme Court judge; he will be both. Justice Morris, two Presidents ago, used to hear cases in both jurisdictions. It did not occur to me when his Honour leapt from VCAT to the Supreme Court recently (see my post at the time) that this might be in the wind; Justice Kevin Bell was appointed President only in March 2008, but it seems that was always a 2 year term. It will be interesting to see whether Justice Ross will see much business in the Legal Practice List, to which he is accustomed.
Legal plagiarism cases: a non-exhaustive review
I did a plagiarism case before the Board of Examiners last year, and looked up the cases then. My colleague Patrick Over also reviewed them for his prosecution on behalf of the Legal Services Commissioner of the plagiarist solicitor in Legal Services Commissioner v WJK [2010] VCAT 108, and cleverly found a case from the old Solicitors’ Board which my researches did not pick up. Senior Member Howell (who was the Solicitors’ Board, back in the day) helpfully digested the authorities (there is also, of course, Re OG [2007] VSC 520, noted by me here): Continue reading “Legal plagiarism cases: a non-exhaustive review”
Plagiarist solicitor suspended for 6 months
In Legal Services Commissioner v WJK [2010] VCAT 108, a sole practitioner who has written a legal text and published a number of articles succumbed to temptation when the pressures of life got to him and meant he did not have time to do a proper job of writing a 10,000 word research paper for his Master of Health and Medical Law at Melbourne Uni. He plagiarised extensively from two published articles which he did not acknowledge at all. I can tell you, I presently have the greatest of sympathy for full-time lawyers who have to squeeze Masters study into their lives. But I must confess to a degree of incomprehension as to why the solicitor, having gotten away with the plagiarism and garnered a good mark, thought publishing the plagiarism in the Journal of Law and Medicine was a good idea.
He made admissions at an early stage after he was caught out, but persisted to the end of the misconduct hearing with mitigatory evidence which was rejected as implausible. He pleaded guilty to two counts of professional misconduct at common law which specifically alleged that his plagiarism was deliberate. His practising certificate was cancelled and he will not be getting a new one within 6 months of the cancellation taking effect.
Steve Mark
On 3 March 2010 in Parramatta, Steve Mark, NSW’s Legal Services Commissioner is giving a talk on ‘Walking the Ethical Tightrope: Balancing the Responsibilities of In-House Counsel to Key Stakeholders’. If you would prefer to read the speech on your Ipad in the bath, click here. He would do well to include a grab from series 2 of ‘Damages‘, the brilliant HBO legal drama starring Glenn Close, Rose Byrne, and — as Claire Maddox, corporate counsel of a murderous and polluting energy company — Marcia Gay Harden. I am quite ignorant about Mr Mark, but from what I can tell about the NSW Legal Services Commission, it seems to do some innovative and good things. His speeches are collected at this page. He has some other hats too which make him sound like a decent kind of bloke: Continue reading “Steve Mark”
Partly oral and partly written contracts
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 is a case about the construction of partly written and partly oral contracts, and the application of the parol evidence rule to them. Justice of Appeal Campbell summarised the cases in one of those beautifully crafted little numbered lists that this little newspaper regards fondly. Truly, these little numbered lists of principles supported by authority are a labour of love and they are worth sharing. His Honour said:
(1) When there is a document that on its face appears to be a complete contract, that provides an evidentiary basis for inferring that the document contains the whole of the express contractual terms that bind the parties: Gillespie Brothers & Co v Cheney, Eggar & Co [1896] 2 QB 59 at 62 per Lord Russell of Killowen CJ; Gordon v Macgregor [1909] HCA 26; (1909) 8 CLR 316 at 319-20 per Griffith CJ (with whom O’Connor J agreed), at 322-3 per Isaacs J; Hoyt’s Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133 at 143-4 per Isaacs J (with whom Rich J agreed); Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89; (1953) 89 CLR 507 at 517 per Dixon CJ, Fullagar and Taylor JJ; State Rail Authority (NSW) v Health Outdoor Pty Ltd (1986) 7 NSWLR 170 at 191G-2C per McHugh JA (with whom Kirby P at 172G-3C and Glass JA at 180G agreed on this point); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 (FC) at 505-6 [280]– [281], 509 [293] per Allsop J (with whom Drummond and Mansfield JJ agreed); Jessop v McInteer [2003] QCA 170 (FC) at [53] per Muir J (with whom Fryberg J agreed). Continue reading “Partly oral and partly written contracts”
How not to sue for fees
Update, 8 March 2010: See also Pancarci v CVK & Co [1998] VLPT 10, a decision of Registrar Howell. The barrister who is now Judge Jane Campton appeared, and referred Mr Howell to a decision of Justice O’Bryan in Carroll v Young (delivered 16 January 1990 in Supreme Court proceedings numbered OR 108/89), which came to the same conclusion in relation to solicitors’ reliance on the ‘evidenced in writing’ requirement for costs agreements. Registrar Howell followed Justice O’Bryan’s decision, as well as a previous decision of his own which he did not name, in which he had followed In re a Solicitor [1956] 1 QB 155 on the same point.
Update, 23 February 2010: Sydney Morning Herald article here.
Original post: Najem v M [2010] NSWSC 20 is a great read. It is a text book example of how not to sue for fees. It also progresses the resolution of the question on which two justices of appeal had previously divided, the third helpfully not deciding, in a previous decision. The question is whether a solicitor may use the rule that oral costs agreements are void against a client relying on a costs agreement favourable to the client. No, said Justice McCallum. The decision also provides an insight into what does and does not amount to ‘evidenced in writing’, the minimum condition for enforceability of costs agreements. Continue reading “How not to sue for fees”
Whether Briginshaw applies depends on the nature of the allegations, not the nature of the proceedings
In Polglaze v The Veterinary Practitioners Board of NSW [2010] NSWCA 4, the NSW Court of Appeal did not seem to be impressed about an appeal reaching them in relation to a finding of unsatisfactory professional conduct in failing to warn the owner of a dog-patient that a second sedating injection was going to cost her. The fine had been $200. It was not in dispute that the vet had not given the warning. Nevertheless, the vet trotted out as an appeal point the well-worn chestnut of inadequate consideration of the Briginshaw principle that the more serious the allegations, the more persuasive must be the proof of them. All of the appeal judges dismissed the point summarily. They all said that given that the non-giving of the warning was not in dispute, there was no evidentiary controversy to which Briginshaw could have operation. Anyway, Acting Justice of Appeal Handley said, ‘I would not readily accept that the Tribunal, which hears many disciplinary cases against members of the professions, would fail to direct itself in accordance with [the Briginshaw] test.’ Justice of Appeal Beazley agreed. More interestingly, however, Justice of Appeal Basten said, by way of additional comments at [18]ff:
Twenty-seven year old proceeding dismissed for want of prosecution
Do things move slowly in Western Australia? I wrote about an estate matter which went on and on and on here. Now a twenty-seven year old proceeding, which came to have as one of its defendants a famous QC has been dismissed for want of prosecution and the decision confirmed on appeal: Smith v Bank of Western Australia [2010] WASCA 15. The QC investigated Moira Rayner, and defended the QC disciplined for having taken to the media during the course of the Schapelle Corby saga. Anyone know of a proceeding which has been on foot for longer?
NSW Court of Appeal on difference between ‘professional misconduct’ and ‘unsatisfactory professional conduct’
The distinction between ‘professional misconduct’ and ‘unsatisfactory professional conduct’ is usually elusive. Guidance from an appellate court in relation to cognate legislation is therefore valuable. It seems that one instance of ‘incredibly sloppy’ work involving innocent false representations being made to the other side, if it is comprised of a series of closely related bits of conduct in relation to the one matter, is not what is contemplated by the words ‘substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’. CYX v Council of the Law Society of NSW [2009] NSWCA 430 (previously blogged here) is a decision I regard as indicating an appropriately restrictive approach to identifying ‘professional misconduct’, a finding which should carry with it the opprobrium associated with the worst professional wrongs. The NSW Court of Appeal overturned a finding by New South Wales’s Administrative Appeals Tribunal’s of professional misconduct. Continue reading “NSW Court of Appeal on difference between ‘professional misconduct’ and ‘unsatisfactory professional conduct’”
Can you justify a subpoena by relevance only to credit?
Update: See also Liristis v Gadelrabb [2009] NSWSC 441, and Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064. And Taylor v O’Neill [2012] NSWSC 626 where a solicitor sued for negligence successfully resisted an application to set aside a subpoena issued to the police to produce the plaintiff’s criminal record in circumstances where its contents were relevant only to credit in a ‘she said, he said’ contest of evidence between him and the former client plaintiff.
Original post: The short answer is — yes. Jack Brabham Engines Ltd v Beare [2010] FCA 35 is a decision on an application to set aside a subpoena. One of the plaintiffs subpoenaed the police to produce the ‘criminal history records’ of one of the respondents. The plaintiff said the documents were potentially relevant to the credit of the respondent. Evidently, there was some evidence in the case, admitted subject to the resolution of objections ‘relating to the conduct of [the respondent] involving the police and alleged offences which … would or could be of apparent relevance to the matters between the parties in this case.’ So the subpoena could not be regarded as just a fishing expedition. The credibility of the defendant’s evidence was likely to be important for the resolution of the case. Relatively recently appointed Justice Jayne Jagot found that the subpoena was not an abuse of process and refused to set it aside. Her Honour emphasised, however, that the fact that she refused to set aside the subpoena was only phase one in the multi-phase life of a subpoena. Continue reading “Can you justify a subpoena by relevance only to credit?”
Is there a principle of construction presuming simple interest in the absence of specification?
Several times I have wondered, in my short career so far, whether a loan or other commercial agreement which provides for interest at a particular rate should be construed as providing for simple or compound interest. My presumption has been that such a provision would be interpreted to provide for simple interest unless compound interest is specified. Surprisingly, that is not the law; there is no presumption. The question is to be resolved by reference to orthodox principles of ascertaining the parties’ intentions without resort to presumptions of law. In Decorrado v Manoukian [2009] VSC 451, Justice Vickery explained the law, and applied it as follows: Continue reading “Is there a principle of construction presuming simple interest in the absence of specification?”