The Australian Professional Liability Blog
Stephen Warne on professional negligence, regulation and discipline around the world
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 …
Up in NSW, the system of reviewing legal costs is very different from here in Victoria. It is done on the papers by non-judges. As District Court Judge Peter Johnstone said in Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55: ‘the costs assessment process is a statutory process that is neither …
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 …
Continue reading “Appeal rights against personal costs orders against lawyers”
Tress Cox are putting on a seminar series I think is interesting. Big firms typically all put out a case note about the same latest cases, and their clients yawn. Tress Cox has chosen a different path: a seminar each about 5 landmark — but not necessarily recent — cases, with the catch phrase ‘How …
Z v Dental Complaints Assessment Commission [2008] NZSC 55 is the subject of this post, as well as of this one and this one. Set out in this post is the entirety of the three sets of reasons’ discussion of the appropriate standard of proof in disciplinary prosecutions, starting with those of the plurality (Blanchard, …
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, …
Continue reading “Chief Justice Elias’s argument for criminal standard in disciplinary prosecutions”
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 …
Continue reading “Supreme Court overturns 2008’s biggest discipline decision”
Many new decisions of interest are coming out and I will not have time to blog them any time soon as I have to go to University and concentrate on my latest and hopefully last field of study, Shareholders Rights and Remedies. Here are some pointers in case you want to read this slew of …
In Osland v Secretary to the Department of Justice [2010] HCA 24, Chief Justice French, and Justices Gummow and Bell said: ‘The jurisdiction and powers of the Court of Appeal 17. It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order …
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 …
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 …
Benecke v National Australia Bank (1993) 35 NSWLR 110 is one of the best known Australian cases about imputed waiver in relation to making allegations about the course of the retainer of former lawyers. It is not, however, a case about imputed waiver in professional negligence suits against former solicitors, since this was not such …
Update, 1 February 2012: Glen Wright of Tas Legal brought to my attention the case of Gavin Boyle Constructions Pty Ltd v Fabrok Pty Ltd [2011] QDC 214 in which the judge set aside a regularly entered default judgment, but declined to award costs in favour of the plaintiff because it knew, pre-commencement of the …
Kelly v Jowett [2009] NSWCA 278 is the latest wasted costs case. The lawyers against whom the order was made had tendered against them their own intra-office memorandum: ‘Your performance in the conduct of this matter has been pathetic. Your failure, given the recent transfer of these matters, to even have the courtesy to provide …
For the moment, I am taking Advanced Evidence at Melbourne University, and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 is on the reading guide. As it is a case about a lawyer-client dispute, and as it not likely to be at the forefront of reading about legal professional privilege since Mann v …
Continue reading “How would Goldberg v Ng be decided today?”
(Thanks to A. Davey for the image.) I’m off to Ethiopia on Friday. I have long wanted to go. I am hopelessly attracted to the exotic. I arrived in Timbuktoo on a small boat carrying cement up the Niger River and went off into the Sahara with an indigo-robed Tuareg and a camel, I rode …
My fellow barrister Andrew Kincaid has written a useful summary of that thorny part of the law of negligence which regulates in what circumstances builders owe a duty to people who buy buildings from the original owner to avoid them suffering pure economic loss when a latent defect becomes patent. Although we (or I at …
Continue reading “Professionals’ duties of care to subsequent purchasers of commercial buildings”
Adjournment applications and applications to amend out of time in civil proceedings just got more difficult. I have a feeling that the first time I said anything in court after I came to the Bar was an expression, to the Supreme Court’s Master Efthim, of how melancholy I felt about regrettably having little choice but …
Update: What do you know! Here’s another one, hot off the press of the Supreme Court of Queensland: Charleville RSL Memorial Club Inc v Sheapalm Pty Ltd [2009] QSC 193. Original post: What insurers do when they get a public liability claim is hire a loss assessor to find out the facts, hopefully get to …
Continue reading “Latest on privilege of loss assessors’ reports”
What follows are links to the Acts which regulate lawyers in each state and territory, ordered by date of principal commencement, commencement details, and, where available, links to the predecessor Act. South Australia is yet to catch up with the rest of Australia, stuck with its Legal Practitioners Act, 1981. Everyone else has Acts in …
Continue reading “Links to the states’ and territories’ Legal Profession Acts”