Posted on

Chakera v Kuzamanovic [2003] VSC 92

Chakera v Kuzamanovic [2003] VSC 92 is a decision of the Supreme Court of Victoria’s Justice Nettle in relation to the effect of a default under the costs disclosure regime under the Legal Practice Act, 1996. It stands for the proposition that in the case of complete non-compliance with the costs disclosure regime, the solicitor is still entitled to recover legal costs, albeit possibly on a reduced basis. The consequences of non-disclosure were spelt out in s. 91 of the Act. That section made it clear that costs were recoverable on a quantum meruit basis even where there was no valid costs agreement. All sounds pretty obvious now, but a Magistrate, tactfully unnamed, was adamant that non-compliance with s. 86 of the Legal Practice Act, 1996 meant that no fees for work done in a retainer could be recovered. ‘Nonsense!’, Justice Nettle said.

Today, the correlate of s. 86 of the old Act is s. 3.4.9,and the correlate of s. 91 is the rather more complicated s. 3.4.17.

Posted on

Both sides apply to restrain the other’s lawyers from acting

I prepared an application to restrain a firm of solicitors from acting in a Corporations List matter in the Supreme Court recently, and so have been reading the latest cases about conflict injunctions. The very latest is TJ Board & Sons Pty Ltd v Castello [2008] VSC 91, where the plaintiff applied unsuccessfully to restrain the defendants’ solicitors from acting, and the defendants applied to restrain the plaintiff’s solicitors from acting. Neither succeeded in convincing Justice Hollingworth. The first application is interesting in making some comment on:

  • the materiality of the evidence which a solicitor must be likely to give; and
  • the extent of a personal interest in the outcome of the litigation as a result of participation in the controversial events which a solicitor must have

before he or she will be enjoined from acting because of a conflict of duty and interest.

The second application is a relatively unremarkable application of the law relating to confidential information based conflicts which allegedly arose out of a pre-retainer 20 minute ‘meet and greet’ which did not lead on to a retainer. Continue reading “Both sides apply to restrain the other’s lawyers from acting”

Posted on

Once you’ve done your time, prior misconduct not an indicator of fitness to practise

In JLL v Law Institute of Victoria Limited [2008] VCAT 456, a Box Hill solicitor who had paid only $5,000 of the $55,000 odd he owed under orders of the Legal Profession Tribunal was given a practising certificate by VCAT, overturning a decision of the Law Institute not to give him one on the basis that he was not a fit and proper person. Judge Bowman said the Institute had been wrong to rely on past misconduct which had already been considered by the Legal Profession Tribunal, and in respect of which the solicitor should be deemed to have ‘done his time’, so long as he entered into a repayment plan. Continue reading “Once you’ve done your time, prior misconduct not an indicator of fitness to practise”

Posted on

Can lawyers sue and be sued under the Fair Trading Act, 1999?

It is well established in VCAT that when doctors and lawyers engage in professional activities in the course of their retainers, e.g. by giving advice, interviewing witnesses, and representing clients, they do not engage in trade or commerce: see for example Stagliano v Duke [2007] VCAT 1070, which I posted about here. Most Fair Trading Act, 1999 causes of action are available only in respect of conduct in trade or commerce. But is the workaround its consumer and trader dispute jurisdiction? The authorities are at odds with one another. Continue reading “Can lawyers sue and be sued under the Fair Trading Act, 1999?”

Posted on

Yet another sole practitioner ignores the Bureau (yawn)

In Legal Services Commissioner v RMB [2008] VCAT 170, the Bureau de Spank prosecuted a Fitzroy sole practitioner who had studiously ignored a complaint for nearly 11 months. The solicitor finished up paying just $2,500 including costs. Again, the Commissioner is to be commended for keeping costs low ($1,500) by sending along one of her complaint handlers, Anita Spitzer. The solicitor had no good excuse for her impertinence, but was given a discount for never having been found guilty of a disciplinary offence before (a status no doubt shared by 99% of practitioners), and, no doubt, for admitting the allegations. Continue reading “Yet another sole practitioner ignores the Bureau (yawn)”

Posted on

Anshun estoppel’s application to the post-fees case professional negligence claim

To what extent can you defend a suit by your solicitor for fees and then turn around after settlement, or after the trial of that suit, and sue for negligence? The leading Victorian case on the question is Delahunty v Howell, unreported, Supreme Court of Victoria, Gray J, 12 May 1993 (BC9300688). It was an administrative law review of a decision of VCAT’s Senior Member Howell back when he was Registrar of the Solicitors Board. This post considers that decision and subsequent decisions of VCAT’s predecessors which have applied it. Continue reading “Anshun estoppel’s application to the post-fees case professional negligence claim”

Posted on

VCAT runs out of patience with serial adjourner

I was drinking beer at The Peacock the other afternoon, and a VCAT member was muttering about the Supreme Court overturning VCAT decisions on the basis that applications for adjournment were not granted when they could have been cured by an order for costs. The suggestion was that the Court may have overlooked the fact that no costs are awardable in certain classes of cases. The other point was that in many lists, like the civil list, members are expected to churn through a case an hour, without the assistance of counsel on which decision makers generally rely on so heavily.

My conversation came back to me while reading HL v Fahey [2007] VCAT 2400, a case about Ms Fahey’s dissatisfaction with a bill for $1,199. Ms Fahey successfully sought 2 adjournments. The first time, she had to go to Norway for a qualifying competition for the Olympics. Her game is dressage. The second time, she simply wrote in sick. The third time, she attached a sick note from a doctor. VCAT told her that administrative adjournments were over and told her to come to the hearing and make her application there, and to be ready to proceed if she failed. She did not turn up, and so an order was made against her. She sought a review, akin to an application to set aside a default judgment. She sent a fax to VCAT at 9.36 a.m. before the 10 a.m. hearing in which she said she was ‘unable to attend today’s review hearing due to extreme illness’, and concluded ‘I will contact you again in the future to arrange a new review date.’ That attempt to direct the Tribunal to adjourn failed, and Senior Member Howell heard the case in her absence, saying: Continue reading “VCAT runs out of patience with serial adjourner”

Posted on

Rise of the celebrity QC and of Australian lawyer rankings

Update, 7 June 2008: The Age‘s weekend magazine had a front cover profile of Dave Hughes, and the same day the June Australian Financial Review Magazine had a front cover profile of Tom Hughes. Diverse and powerful as Tom’s family is, I do not think it counts Dave as a member. This is the most fawning, glossy QC portrait in the series: no fewer than 7 photos, two full-pagers.   The hagiographical profile reminded me that Tom is art critic Robert Hughes’s brother.  Before court, he works Jesuitically for four hours every day on the 62nd floor of the MLC Tower, leaving for work at 4.55 a.m.  He has been a barrister for almost 60 years. These days, his junior is often his son Tom Hughes.  His daughter Lucy is one-time mayor of Sydney and happens to be married to Malcolm Turnbull.  France gave him a legion of honour for his service in World War II.  He was mates with Sir Owen Dixon, Sir Frank Packer, and Sir John Gorton. He argued in the Privy Council.  He was for 16 months Attorney-General in Gorton’s government: John Howard was his campaign manager when he got elected.  He enthused mightily about the American intervention in Vietnam. What is most interesting however, is that this is not the first front page profile Hughes has suffered:

‘In early 1978, the now-defunct Bulletin magazine, owned by Kerry Packer’s Australian Consolidate Press, splashed across its cover a large photo of Tom Hughes, with a story headlined “From Silk to Riches — Portrait of a $1,000 a day QC”.  Soon afer the article appeared, its author, Malcolm Turnbull, sent a bouquet of roses around to Tom Hughes’s chambers for his daughter, Lucy, then aged 19, who had just completed first-year law.  Turnbull married Lucy Hughes two years later.’

Update, 23 April 2008: Now The Times has published its list of the 100 most powerful English lawyers. Sir Igor Judge is right up there in the top ten.

Original post: It’s not just Peter Faris, with his blog, his until-recently radio show, his comments about the Fijian judiciary in the Fiji Times, and repeated Age profiles. Has anyone else noticed the rise of the celebrity QC profile? The glossy Melbourne Magazine, published monthly by The Age, had a profile of Julian Burnside QC last year. Like Geoffrey Robertson QC (remember his hypotheticals?), Mr Burnside writes and his profile was part of the publishing cycle, tied in with his new book. But Colin Lovitt QC — best known for representing Jaidyn Leskie’s babysitter, Greg Domaszewicz — profiled in Royal Auto? (Turns out from the profile he did the whole thing pro bono.) And, Alan Myers QC, of all people, the very exemplar of the traditional Bar, reminiscing about his first tax case in The Australian Financial Review? Is it a trend I see?

Mr Myers’ profile was part of another new phenomenon, lawyer ranking blinged up to the next level, a great big US-inspired lift-out supplement to the AFR’s Legal Affairs pages. Continue reading “Rise of the celebrity QC and of Australian lawyer rankings”

Posted on

Ohio State Medical Association Frivolous Lawsuits Committee scores 3 victories against med neg plaintiff lawyers

The Ohio State Medical Association’s Frivolous Lawsuit Committee defended 3 frivolous medical negligence suits against members and funded counterclaims by the defendant doctors against the plaintiff’s solicitors for bringing hopeless claims. The doctors succeeded. Continue reading “Ohio State Medical Association Frivolous Lawsuits Committee scores 3 victories against med neg plaintiff lawyers”

Posted on

I have only respect and honour for your Honour

Schadenfreude being a German word, I suppose this must be an example of überschadenfreude. To watch this man digging his own grave made my guts clench up with distress. An advocate turns up more than an hour late to run a criminal trial in a Las Vegas court for a man facing a life sentence. Claiming to be ‘stone cold sober’ things don’t go well, and he implores a judge not to breath test him in court, with the invocation ‘I have only respect and honour for your Honour’. The charm doesn’t work. It is not a happy ending.

Posted on

Bad bad dermatologist

Update, 24 June 2008: the Herald Sun today revealed the doctor’s attempt to sell his Toorak home until the sale was restrained by police, and that Slater & Gordon are suing the Medical Board for damages on behalf of the doctor’s victims.  Should be interesting.  People will be suing the Law Institute next for not rubbing out with sufficient vigor dodgy solicitors who then go on to rip them off.

The dermatologist does not necessarily spring to mind as the specialist with the opportunity to rape patients after getting them starkers and photographing them without their consent with his mobile phone, while ‘panting’ with excitement. This one managed it, and sexually assaulted or digitally raped his patients, 14 of them. He survived 2 complaints to the Medical Board by deliberately deceiving it, but continued to offend. The Board has apologised to his victims, is reviewing other cases, and has revealed that the relationship between the police and the Board broke down so badly that the police turned up with a search warrant. There are suggestions of mental health issues by his relatives. He hired a female QC to defend him against the female prosecutrix, and his own counsel described him to the court as a nerd: Continue reading “Bad bad dermatologist”

Posted on

VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work

Praag v W & T Lawyers [2008] VCAT 307 was a rare thing: a case in VCAT’s Legal Practice List actually prosecuted pursuant to the Legal Profession Act, 2004. Mr Praag was his late mother’s executor. Before her death, she lived in Canberra. Her assets were a house in Canberra and $50,000 cash. Mr Praag went to the respondent solicitors who said they would get probate of the will for $2,800. The scale cost for doing so was $499. They did not otherwise comply with the costs disclosure regime in the Legal Profession Act, 2004. In fact it was unnecessary to get probate in Victoria, and it would have been better to have got it in the ACT. Though Mr Praag was able to withdraw the cash from the Bank with the Victorian parchment, he was unable to deal with the house unless he resealed the probate in ACT, which cost a bit extra on top of the cost of getting probate. Member Butcher mentioned several ‘concerns’ he had before concluding: Continue reading “VCAT cancels bill and leaves solicitor wholly unremunerated for sloppy work”

Posted on

Unilateral communications with the Court

Justice Young, the editor of the Australian Law Journal, has gone public with his frustration at litigants constantly ringing his associate to dob in the other side for missing deadlines. Here’s The Australian‘s article. He reiterates the unambiguity of the rule against unilateral communications. Generally, one never corresponds with a judge in relation to litigation. One communicates in writing or by oral submissions only in the courtroom under the theoretical glare of public scrutiny. If it is necessary to communicate a document outside of the courtroom, one addresses it to the judge’s associate. Judicial detachment is achieved by both parties to the communication communicating only through the associate. Continue reading “Unilateral communications with the Court”

Posted on

An English legal ethics man in Miami

My impression is that the legal ethics dialogue is highly developed in the United States. The extent to which people practice what is preached over there is something I have heard word about but can’t guess at too accurately. Maybe its lawyers are more prone to extreme badness and so the discussion has more to feed on; they bribe judges over there, or try, or so it is alleged. And lawyers get access to their clients’ alleged victims’ laptops by having private investigators pose as researchers on internet use, and offering a new laptop in exchange for the old. And get away with it on the basis that they did not do the deed personally.

The extent to which the appearance of heightened discussion is merely a function of a huge population and a huge blogosphere is also something I find it difficult to guess at. Now there is an experiment which will help me work it out. An Englishman, John Flood, author of Random Academic Thoughts, is over in Miami, visiting a law school. And he’s blogging about it. So far, he’s impressed. While he’s in Florida, he could drop in on Jim Morrison’s birthplace, Melbourne, and let us all know how Melbourne, London, and Miami stack up against each other.

Posted on

Pro bono in Victoria; McLelland to copy Hulls’s carrot theory

The Age‘s Julie Szego has written a substantial article in The Age about barristers and pro bono in Victoria. It arises out of Fiona McLeod SC volunteering her time to represent the Blue Wedges coalition which is opposing the Port of Melbourne’s channel deepening project. The Victorian Bar’s pro bono scheme, administered by Victoria’s cutting-edge one stop pro bono shop, the Public Interest Law Clearing House gets a mention, but another scheme, devised by the Bar recently, did not. That’s the duty barrister scheme where barristers agree to go to a particular court for a day and take whatever they are assigned for whoever needs them most.

Then The Australian has a story about the new Labor government’s contemplation of copying Victorian Attorney General Rob Hulls’s innovative method for getting the big end of town to do pro bono with alacrity. If Attorney-General Robert McLelland’s policy plan is to get big firms doing pro bono more equally and with more equal conviction than is presently the case, it’s a no brainer. It worked brilliantly in Melbourne. Continue reading “Pro bono in Victoria; McLelland to copy Hulls’s carrot theory”

Posted on

Justice Kevin Bell appointed VCAT’s President

I had heard the rumour a fair while ago from the most impeccable sources in VCAT and the Supreme Court that the Supreme Court’s Justice Bell was hot tip to take over from Judge Bowman as VCAT’s head. Now it’s confirmed. Frankly, though it would not be every lawyer’s cup of tea, it’s a great job, and a most important appointment. Continue reading “Justice Kevin Bell appointed VCAT’s President”

Posted on

A case about contested quantum in crash and bash litigation

Stocovaz v Fung [2007] NSWCA 199 is a rare thing: a superior court decision about motor vehicle property damage litigation, more commonly known as ‘crash ‘n’ bash’. The New South Wales Court of Appeal said that the plaintiff is entitled to the amount actually paid for repairs unless the defendant can establish that it was ‘extravagant’ in the sense of being outside the range of amounts which a reasonable person would pay for the repairs. There seems to be a policy to avoid clogging up the courts with cases which take a comparatively long time to hear, but amount to squabbles between insurers over differences of a few thousand dollars. Carter Newell’s case note is here.

Posted on

On blogging

The other day, I did a very geeky thing which was also a bit unonline. I had a coffee with fellow lawyer blogger, the mysterious Legal Eagle. One result of the coffee was that somehow I charmed her into writing a second case note of interest to readers of this blog — this time on the long and not entirely straightforward decision of the Victorian Court of Appeal in Equuscorp v Wilmoth Field Warne, referred to briefly in my post ‘Cases, cases’. Go read it. A second may have been that Ms Eagle has ‘tagged’ me with a ‘meme’. It’s very blogosphere. I will participate, but one of the three limbs of this modern day chain letter is going to die with me as I don’t intend to tag anyone else. I will be very grateful if some of the effusive commenters over at her blog migrate over to mine and get a bit of discussion going. So, 3 reasons why I blog. Continue reading “On blogging”

Posted on

Once the time for taxation runs out, the solicitor can sue on the bill as a simple debt

I have never been quite clear about what you have to prove in a suit for fees. I was attracted to the proposition that if a client wants to go through a bill item by item, the place to do that is in a taxation, and if they do not go down that path, or they can’t because they’re out of time, then no challenge of the kind typical of a taxation ought to be allowed in the suit for fees, that is, that the bill may be sued on as a debt due and owing. But I was never entirely confident about it.

The Full Legal Profession Tribunal’s 16 June 2000 decision in B v Home Wilkinson Lowry [1999] VLPT 1 is authority for many things (principally that state tribunals like VCAT have no jurisdiction over the costs of Family Court proceedings), and seems to be authority too for the proposition which attracted me. Continue reading “Once the time for taxation runs out, the solicitor can sue on the bill as a simple debt”

Posted on

Britney Spears’s ‘doctor’ criticised for public comments

I am always astounded how many professionals make public comments about their clients. I cannot really understand why society allows lawyers to publish their memoirs. I read John Marsden’s memoirs, and was not impressed by his comments about Ivan Milat. If I remember correctly, they suggested, or rekindled the suggestion in the public mind, that Mr Milat got away with rapes long before he started knocking backpackers off, that it was Marsden’s brilliance which had achieved that, and that Marsden, cancer-stricken, wanted to tell the world that he rather regretted it now. Marsden also named, to the media, a woman whom he said was Mr Milat’s accomplice in the murders. Criminal lawyers have to live with secrets which bear down heavily on them. Perhaps it is not surprising that Marsden made the disclosure. But where was the reportage that this was a serious transgression? I am not speaking of condemnation, but rather an acknowledgment that this is not as it should be. All this assumes, of course, one thing which I do not know, namely that Mr Marsden did not have Mr Milat’s permission to make these statements.

Here’s an article about Britney Spears’s doctor, Dr Phil McGraw. Continue reading “Britney Spears’s ‘doctor’ criticised for public comments”