Posted on

VCAT’s Vice-Prez confirms lawyers do not engage in trade or commerce

In Walsh v PJCC&A Pty [2008] VCAT 962, beneficiaries of an estate were critical of the testator’s lawyers before death. They became his executors after his death, and appointed the firm they worked for as their solicitors. The beneficiaries sued the firm, and its solicitor-executors for unconscionable conduct and misleading or deceptive conduct. Their beef was the level of fees charged by the firm in the context of the executors having left all of the work of the administration of the estate to the firm as their solicitors, and yet having scooped up the 3% executors commission provided for in the will. Judge Harbison summarily dismissed the whole case principally on the basis that when they engage in professional work, lawyers do not engage in trade or commerce, as required by both causes of action under the Fair Trading Act, 1999. The trade or commerce requirement was a jurisdictional issue, she said, for the applicants to establish at the outset of the case, not something for the respondents to establish the absence of. It was permissible, and quite possible, to determine the question by reference to the particulars of dispute so long as they were articulated sufficiently.

Interestingly, despite numerous strike out applications, a professional negligence claim against solicitors  pleaded as a misleading and deceptive conduct case has survived in Western Australia, though it is not clear that anyone has taken the point that lawyers do not engage in trade or commerce in that case: Alpine Holdings Pty Ltd v Feinauer [2008] WASCA 85.

Continue reading “VCAT’s Vice-Prez confirms lawyers do not engage in trade or commerce”

Posted on

More cases

I only just caught up with the fact that the Court of Appeal has overturned Justice Gillard’s decision in Kabourakis v Medical Board of Victoria [2005] VSC 493, the subject of an earlier post. See [2006] VSC 301.

VCAT’s Vice President Harbison, sitting in the Legal Practice List for the first time I am aware of, has contributed what appears to be a most interesting addition to the authorities about whether solicitors engage in trade and commerce for the purposes of the Fair Trading Act, 1999 (and, by analogy, of the Trade Practices Act, 1974), and whether solicitors may ever be sued under the Fair Trading Act, 1999. As to which, see this earlier post. The decision is Walsh v PJCC&A Pty [2008] VCAT 962 which I will certainly be posting a detailed analysis of.

Then a NSW decision has illustrated again the problem of sloppy regulators failing to consider whether what purports to be a complaint received by them is in fact a complaint as defined by the Act which regulates them (an allegation in both of the cases noted here). This time it was NSW’s Legal Services Commissioner, Steve Mark, getting bashed up by the NSW Administrative Appeals Tribunal’s Legal Services Division in Legal Services Commissioner v SG [2008] NSWADT 48:

’64 As stated, Mr Mark determined that a complaint had been made of deliberate charging of grossly excessive amounts of costs, when no such complaint had been made.

65 Without any further evidence or effort to obtain a valid expert opinion, the LSC instituted the complaint and brought this matter before the Tribunal on the equivocal opinion expressed by Mr McIntyre. Samantha Gulliver investigated the complaint on behalf of Mr Mark, however what, if anything, resulted from such investigation was not placed before the Tribunal. Continue reading “More cases”

Posted on

It’s ok for solicitors to try to resolve complaints directly with the complainants

I have always been a bit chary about allowing lawyers for whom I act to communicate directly with complainants, thinking it often more desirable for communications to be principally with the Legal Services Commissioner once the complaint process was initiated. Turns out it was a rare moment of over-anxiety on my part. In Legal Services Commissioner v JFB [2008] VCAT 842, a prosecution for failing to cooperate with a demand by the Commissioner for a written explanation in response to a complaint, Member Butcher said:

‘5. Since the application has been made the [solicitor] has provided some material to the Legal Services Commissioner and it is the view of the Commissioner that this does not constitute a full written explanation. By way of plea, Counsel on behalf of the [solicitor] outlined the circumstances in relation to the complaint and appraised the Tribunal of the [solicitor’s] endeavours to resolve the complaint through the complainant rather than by communication with the Legal Services Commission. This is not an uncommon course of action, however it ignores the statutory requirement that members of the legal profession respond to the Commissioner when required to do so. It may well be that matters which are the subject of complaint can be resolved between the legal practitioner and the client or indeed other person who has made the complaint and it would never be said that this should not be attempted, however this does not take away from the requirement and the duty to respond to the Commissioner.’ (my emphasis)

Posted on

Suddenly, solicitors are losing their practising certificates for not cooperating with the Bureau de Spank

Update, 13 June 2008: In Legal Services Commissioner v GT [2008] VCAT 982, the solicitor failed to respond to a Bureau demand for 8 months. The complaint about which the Commissioner sought information was of not attending to client affairs, just like the complaint which, amongst others, gave rise to two misconduct findings and two ‘standards breaches’ about 10 years ago.  He got off with a light fine: $500, and costs agreed at about $1,500 on the basis that he was:

’employed by The Micah Law Centre Incorporated, which was conducted by All Saints Anglican Church at Greensborough.

8 He said that he was overwhelmed by the amount of work that he was required to perform.  He said that he worked six days each week, and sometimes seven days.  He said that he suffered from a “severe bronchial viral infection” for ten weeks prior to December 2007.  During that period he struggled to attend to his work, but was required to do so because there was no other person to attend to his files.  He added that he became physically and emotionally exhausted, and that his work had severely impacted upon his marriage.’

and that ‘he is without employment, and … he has not applied to renew his practising certificate as from 1 July 2008.  He also said that he is taking “time out for rest and recuperation”, and to re-build his relationship with his wife.’

Original post: This post is about recent s. 4.4.11(1)(a) prosecutions of 8 solicitors. Section 4.4.11(1)(a) of the Legal Profession Act, 2004 says that if the Bureau de Spank asks for a full written explanation of the conduct the subject of a complaint (or an investigation of the Commissioner’s own volition), or compels the production of apposite documents, the solicitor must cough up within the time specified in the demand, which may not be fewer than 14 days (but is routinely expressed as ‘within 16 days’ though within 16 days of what is not specified). Its predecessor was s. 149 of the Legal Practice Act, 1996. So many people are getting prosecuted that it was getting too boring to blog. But just when I was about to ignore them, VCAT started getting tough, and actually cancelled a couple of blokes’ practising certificates and said it would have cancelled another’s but for the fact that he was retiring anyway. Continue reading “Suddenly, solicitors are losing their practising certificates for not cooperating with the Bureau de Spank”

Posted on

VCAT rewrites unrepresented man’s misconceived application

Slobodan Catovic did not want to pay his solicitor’s bill. He misconceivedly invoked the Legal Profession Act, 2004 provision which allows clients to apply to set aside costs agreements, but that is not what he wanted to do. Senior Member Howell satisfied himself that Mr Catovic had intended to bring an application under the Fair Trading Act, 1999, and ordered that the application be treated as a small claim under that Act. He even told the Registrar to refund Mr Catovic the difference between the fee on an application to set aside a costs agreement and the paltry fee payable on the institution of a small claim under the Fair Trading Act, 1999. See Catovic v H Solicitors [2008] VCAT 840. On the propriety of the cross-fertilisation of VCAT’s jurisdictions, see also this post.

Posted on

Ownership of documents on a solicitor’s file

Update, 21 December 2017:  An English costs judge has made a decision about whether clients can demand, as of right, further copies of lawyers’ documents already received by the client (e.g. file copies of letters from lawyer to client).  He said no, not even if they want them to work out whether to seek taxation of costs.  The decision does not say, of course, that the Court would not order production in any case, but rather simply says that clients have no entitlement to them, even if they offer to pay for the copies.  The case is Green v SGI Legal LLP [2017] EWHC B27 (Costs).  A note about it is here.

Original post: This post is like a case book(let) rather than a text. It sets out the raw materials which bear upon the question of who as between solicitor and client owns (in the sense of is entitled to the original of) what documents typically found in a solicitor’s file. It is very long, and largely unsummarised: a resource to go back to rather than something to trawl through now. It is the product of reading Wentworth v De Montfort (1988) 15 NSWLR 348 (the subject of this separate companion post), the leading case on the question in NSW, and the cases which have considered it since. One day, hopefully, I will do a shorter post summarising the principles.

The state of the law is a scandal. For a start, it is ridiculously uncertain. To the extent it is certain, it is ridiculously difficult to interpret. These deficiencies give rise to abuse. An appropriate law would be that every client ought to be entitled to inspect the whole of a solicitor’s file, and ought to be able to have the whole of the original. Even smart institutional clients do not stipulate for this when negotiating retainers. Presently, the law (or an interpretation of it which is universally tolerated in Victoria) allows solicitors to take bits out of the file and give the client only what remains, so as to leave them with an incomplete whole, a thing without internal integrity, nothing but one part of the jigsaw of the past, an aid rather than a map for the reconstruction of past events. It is little known that the lien will trump an obligation in the solicitor to discover the file to the client (though the solicitor must discover the file to others). In fact, the solicitor is obliged to give discovery but not to allow inspection: Hammerstone Pty Ltd v Lewis [1994] 2 Qd R 267, a case I have caused to be put into play successfully twice, once in the Magistrates’ Court and once in VCAT’s Legal Practice List.

Solicitors’ Professional Conduct and Practice Rules, 2005 (‘7. Ownership of Clients’ Documents – Termination of Engagement’) provides Continue reading “Ownership of documents on a solicitor’s file”

Posted on

Wentworth v De Montfort: a case on ownership of documents in solicitors’ files

This post is a companion to this longer companion post which discusses the other cases on the question of who, as between solicitor and client, is entitled to documents relating to their matter found on solicitors’ files and in their accounts. As the decision with the most detailed consideration of the question, it gets its own post.

Twelve classes of documents on a solicitor’s file were in issue in Wentworth v De Montfort (1988) 15 NSWLR 348, a decision of the NSW Court of Appeal. The key issue in the case was described in this way:

‘Ms Wentworth’s primary submission is that any documents brought into existence or received by Sly & Russell in relation to her litigation were documents created or received by Sly & Russell in their capacity as agents for their principal Ms Wentworth, and that, applying ordinary agency principles, any documents so created or received are accordingly hers. As I understand their case, the opponents do not deny that any document created or received by them only as agents for Ms Wentworth would belong to her. However they deny that any documents falling within the twelve categories were so created or received and submit that upon a number of principles applying to solicitors and other professional people, the documents falling within those categories are theirs.’ Continue reading “Wentworth v De Montfort: a case on ownership of documents in solicitors’ files”

Posted on

Court of Appeal wreaks havoc with most current Legal Services Commissioner investigations

Update, 2 September 2010: Just noticed this and thought to store it away here as potentially interesting: http://jade.barnet.com.au/Jade.html#article=229752.

Update, 7 August 2010: The saga continues.  See this post.

Update, 17 June 2008: The Age has caught up with this story. It’s a funny old article. Weirdest is this comment ‘A prominent senior counsel said the system was unfair, and any complaint should be forwarded immediately to the subject of the complaint.’ In my experience, the Commissioner does almost invariably send the complaint immediately to the solicitor, and that’s not what the case was about anyway.

Original post: In Byrne v Marles [2008] VSCA 78, the Court of Appeal has thrown a very lean cat amongst some very fat pigeons in a decision which may invalidate all current investigations of the Legal Services Commissioner unless it is overturned on appeal or remedial legislation is passed with retrospective effect (which was the response after the great delegation debacle). The Court found that the Commissioner’s referral to the Law Institute for investigation of what she characterised as a disciplinary complaint was ‘invalid’. In following her absolutely standard practice, the Court said the Commissioner had failed to give natural justice to the solicitor by deciding to characterise the complaint as a disciplinary rather than civil complaint and by deciding not to dismiss it summarily without investigation, without allowing the solicitor to be heard in relation to those preliminary decisions. Anyone — complainant or lawyer — who has a current complaint which is not heading in the desired direction should seek advice from a lawyer with expertise in relation to the professional discipline of lawyers. It is conceivable that the decision may provide options for those against whom professional discipline prosecutions have succeeded under the Legal Profession Act, 2004. Given that the Commissioner never, in my experience, invites discussion about the preliminary questions of whether to dismiss the complaint before commencing an investigation, or on the proper characterisation of the complaint, it seems likely that most of the Commissioner’s decisions to investigate complaints will be ‘invalid’. Continue reading “Court of Appeal wreaks havoc with most current Legal Services Commissioner investigations”

Posted on

Magistrate: ‘You fucked up big time’

Update, 2 June 2008: When I was writing the original post, I badly wanted to link to this classic motion to dismiss a criminal charge against a kid who called his principal ‘a fucker, a fag, and a fucking fag’, but it seems it was one thing I did not take with me when I left my work computer behind.  Then two friends came to the rescue. A scan of the actual document may be found here.

Original post: A Victorian Magistrate told a convicted robber ‘You fucked up big time‘ before putting him away for almost four, with a minimum of two. He said he was unaware of the presence in the Court of the schoolgirls who dobbed him in to the Chief Magistrate. Today, ‘terrorist’ and ‘unAustralian’ carry more punch than the rather sweet ‘fuck‘. There is in truth only one word, the c-word, which does not fit in polite speech. And even that does not carry the same sting as the word a Swede whispered conspiratorially into my ear once, afraid even to say it out loud. That is also a four letter F word, and refers to the same bits and bobs as our c-word. I can’t bring myself to tell you what it is lest I breach some obscenity law in Sweden.

Posted on

What is it about ex-telecommunications regulators?

The Times has a feature on David Edmonds, the new non-lawyer Chairman of England’s new Legal Services Board.  He used to be the Director General of Oftel, old Blighty’s telecommunications regulator.  Victoria’s equivalent, Victoria Marles, our Legal Services Commissioner and Chairwoman of the Legal Services Board, was formerly the Deputy Telecommunications Ombudsman.  Weird, huh? England’s new Office of Legal Complaints has a £4 million budget, and Edmonds has a very sensible determination to staff it with top people.  The guy has got it so right:

‘He is determined that his own outfit will be a match for the lawyers it deals with: “top people involved from the start.” His first task is selecting up to ten board members: 300 applications have been whittled to 50 names. The board, with a majority of non-lawyers, will be in place by September. A chief executive is also needed. “My goal is to recruit people who have the skill sets and intellectual abilities to be able to deal on an equal footing with the legal profession. You can’t have a board that doesn’t have the same quality of intellect.”

As to how he will proceed, the clue is with his work at Ofcom, where they did not “go down the Civil Service route” for staff but recruited from outside. A textbook he helped to write about setting up the regulator will serve as a guide.’

A good legal regulator needs top lawyers.  And there is no way of getting them without paying top dollar. But you pay good money for good lawyers in house, and presumably you reduce your reliance on external counsel which must be a good thing for a legal regulator.

Posted on

Detailed causation analysis in solicitor’s negligence case

Walton v Efato Pty Ltd [2008] NSWCA 86 was the subject of this sister post in relation to advocates’ immunity. But the case is also interesting for the detailed analysis given in relation to causation, which is the subject of this post. The Court found that the solicitor’s failure to lodge within time an application to set aside a creditors statutory demand was the cause not only of the failure of that application but also of the costs incurred in the ensuing successful defence of an application to wind up the client company, an atypical costs order at the end of that application by which the client company was ordered to pay the costs of the creditor who had applied unsuccessfully (i.e. so that the rule that costs follow the event was turned on its head) and the costs of the liquidation which was occasioned by the client company’s inability to meet the costs order. The decision will have legal liability insurers squirming and a High Court appeal must be a possibility. Continue reading “Detailed causation analysis in solicitor’s negligence case”

Posted on

NSW Court of Appeal on advocates’ immunity for out of court work

The NSW Court of Appeal dismissed an appeal from a decision finding that a solicitor was not immune from a negligence suit based on a failure to prepare evidence promptly, though its comments in relation to immunity were obiter dicta [102]. Although the evidence did get adduced after a change of solicitors and before the end of the trial, so that the solicitor’s client succeeded, the client was penalised when it came to costs for adducing the critical evidence at the last moment, contrary to case management pre-trial directions. Not only did the succeesful client not get an order that the other side repay its costs, but it was ordered to pay the other side’s costs. The decision is Walton v Efato Pty Ltd [2008] NSWCA 86. Another aspect of the decision is noted at this sister post. Justices of Appeal Beazley and Giles agreed with the lead judgment of Justice of Appeal Tobias.

What happened was that a creditor of a company served a statutory demand on a company. The company’s solicitor did not file and serve within the necessary 21 days the application to set it aside on the basis of a genuine dispute as to the existence of the debt. He did so out of time. So by operation of the Corporations Law, 2001, the company was presumed to be insolvent, and the courts had no power to extend the time retrospectively. Continue reading “NSW Court of Appeal on advocates’ immunity for out of court work”

Posted on

Child porn accused gets ticket back on strict conditions

Almost 3 months ago, a 71 year old sole practitioner who has practiced for 28 years was charged with knowingly possessing child pornography and knowingly transmitting an image of a child having sex. He has not admitted the charges which remain to be tried. He is of course presumed innocent. Nevertheless, the Legal Services Board (through its delegate the Law Institute of Victoria) peremptorily suspended his practising certificate without notice. The Board’s reasons do not appear clearly from VCAT’s decision. It would be interesting to know why the fact of a charge sufficed to satisfy the Board that the solicitor’s right to practise law should be terminated immediately and without hearing him on the question. The solicitor applied to VCAT for a de novo review of the decision. Senior Member Howell’s decision is FM v Law Institute of Victoria Ltd [2008] VCAT 692. The solicitor has 30 current files and a quarter of a million dollars in his trust account. He desires to retire on 1 July, and said that if he could have his practising certificate back he would undertake not to take on any new matters, and to wind up his affairs by then. In the face of the Board’s vehement opposition, VCAT said he could have his practising certificate back. Continue reading “Child porn accused gets ticket back on strict conditions”

Posted on

Oscar

Oscar Warne, born on May Day, is distracting me from blogging for the moment.

Posted on

Solicitor who blatantly lied to clients for years keeps ticket

Legal Services Commissioner v BH [2008] VCAT 687 is a case with terrible facts. A man died as a result of a crime. The family hired the respondent solicitor to act for them in crimes compensation applications. He lost the file some time into the second year of the retainer, but did not tell his clients. Late in the third year of the retainer, the Victims of Crime Assistance Tribunal struck out the claims for want of prosecution, but the solicitor hid the fact. Over a period of 6 months beginning a year later during which the 4th anniversary of the retainer fell, the solicitor made up a whole string of complete lies, telling his clients that VOCAT had made offers of compensation, but that they should be rejected, and that they should attend the fictitious trial. The Commissioner urged the suspension or cancellation of the solicitor’s practising certificate, but the Victorian Civil and Administrative Tribunal (VCAT) declined, instead fining him and imposing conditions on his ongoing practice. Continue reading “Solicitor who blatantly lied to clients for years keeps ticket”

Posted on

Megafirm partner who stole to make budget gets his ticket back after long holiday

The latest application for review of a decision of the Legal Services Board decision not to grant a practising certificate was in the matter of DAP v Law Institute of Victoria [2008] VCAT 688. The 57 year old solicitor and former Melbourne Cricket Club Committee member was a property lawyer at one of Melbourne’s megafirms for about 27 years, many of them as a partner. Over the last nine of those years, he committed various acts of professional misconduct associated with the firm’s trust account. Of course the megafirm was not always a megafirm. The solicitor was for most of his career in one of the firms swallowed up into the megafirm. Justice Betty King, in the solicitor’s criminal prosecution said:

‘6. The [offences] are at the lowest end of the scale of offences of this nature. The total involved was just over $9,000 and it was not money that at any stage was ever to be for your own spending. The money was directed into meeting the targets set by your firm for your department. All firms have become hard-headed businesses, with targets and budgets and six minute units which, I add, is, in my view, driving young lawyers out of the profession at a very rapid rate. You, unfortunately, had commenced practice when it was a profession and unlike its current incarnation. It would, of course, have been preferable to have approached your other partners and indicated that it was not possible to meet the budget that had been set for you and suffered the consequences of not meeting that budget. Instead, you chose this course of conduct, the one of stealing money from those accounts. That has resulted in far worse consequences for you, your wife, your children and the community that you had previously served so well. Continue reading “Megafirm partner who stole to make budget gets his ticket back after long holiday”

Posted on

Never before, never again: Chief Justice of Norfolk Island gets a gig in the Victorian Court of Appeal

Ok, so it’s the man better known as Justice Mark Weinberg of the Federal Court of Victoria, but damn is the man a judge of many courts at once. If I read Deakin University’s staff profile properly, his Honour is concurrently a judge of:

  • the Federal Court;
  • the Supreme Court of Norfolk Island (he sentenced Janelle Patton’s murderer Glenn McNeil to a minimum of 18 years in jail last year);
  • the Supreme Court of Fiji;
  • the Supreme Court of the ACT; and
  • the Federal Police Disciplinary Tribunal.

I cannot think of another Federal Court judge who has crossed over to the Victorian Supreme Court or Court of Appeal. The traffic has been the other way (think Justices Kenny, Nicholson, and Jenkinson).

Punishing as the existing appeal judges say their schedules are, do not be surprised if his Honour just adds the Court of Appeal to his portfolio of judging responsibilities. He presently holds positions at both Deakin and Monash Universities, and was previously the Dean of the University of Melbourne Law School. He has been the Chairman of the Leo Cussen Institute, a long-time member of the Australian Law Reform Commission, and the Commonwealth Director of Public Prosecutions. He wrote the Uniform Evidence Law (along with a couple of others). Continue reading “Never before, never again: Chief Justice of Norfolk Island gets a gig in the Victorian Court of Appeal”

Posted on

VCAT suggests natural justice requires Bureau to wait indefinitely for practitioner’s response

In Legal Services Commissioner v SAC [2008] VCAT 576, a solicitor ignored the Bureau for over 6 months before the Bureau moved to prosecute him for non-compliance with the Commissioner’s demands.  After the charge was laid but before it was heard, the solicitor provided an adequate response and apologised. Didn’t do him any good though: he still copped a finding of misconduct, and has to pay $2,400 in fines and costs.  Member Butcher made this comment: Continue reading “VCAT suggests natural justice requires Bureau to wait indefinitely for practitioner’s response”

Posted on

On Tibet

Sometimes, the slight elevation of my e-soap box causes me to give in to the urge to go off message. My apologies in advance. But the Prime Minister is embroiled in a so-called diplomatic row for having said ‘there are significant human rights problems in Tibet’. The Chinese response was ‘people in Tibet are now enjoying democracy and wonderful human rights protection’. What drugs are their speech writers on? Or have they been talking with Tariq Aziz (remember him from the beginning of the Iraq War?). Why, as a PR exercise, would you denigrate a smiley monk with a Nobel Peace Prize, whom everyone believes to be the Gandhi of our age in so preposterously old fashionedly Newspeak-like a manner as this Xinhua wonder with its claims which leap off the page as preposterous lies, absurd propaganda? Actually, I’d prefer it this way; it’s better than a world run entirely by spin doctors, which must not be that far off given that Hamas spent £100,000 on a public relations job not so long ago. I like my propaganda to sound reassuringly like propaganda. Continue reading “On Tibet”