On Australia Day, I watched the 2002 film ‘Black and White’, about the Max Stuart case. I had picked up historian Ken Inglis’s book on the case at a church fete the other month, thinking it was the kind of thing a young barrister should have in his chambers, and flicked through it at the time before putting it in the waiting room for unread books. It was an excellent film, and I’ve reshuffled the book towards the front of the waiting room. Max Stuart is an aborigine who worked at a travelling fun fair. He was convicted of murder in 1959 on the flimsiest circumstantial evidence and a confession. He had previously been convicted of indecently assaulting a girl, had been a bare knuckle boxer, and was a heavy drinker. Continue reading “Black and white”
Application by appellant to remove respondent’s trial counsel from appeal dismissed
In Chen v Chan [2008] VSCA 2, President Maxwell and Justice of Appeal Redlich dismissed an application by the appellant for an order enjoining the respondent’s solicitor and counsel from acting in the appeal. The applicant alleged that there had been wrongdoing by the respondent’s lawyers at the trial. In fact that was one of the grounds of appeal. It is certainly the case that where a lawyer is to be a witness, he ought not continue to act, especially as an advocate. But their Honours held: Continue reading “Application by appellant to remove respondent’s trial counsel from appeal dismissed”
Hercules and the Magistrates’ Court rule requiring reasons for denials in defences
I had a little debate with the Supreme Court not so long ago about whether my client’s bare denial defence was appropriate. A bank had pleaded that my client had mortgaged his house to it. My client simply denied the allegation. I said by way of a place to start the discussion that it was indubitably a proper pleading if my client’s case was that he had never had anything to do with the Bank. It is not necessary to plead, I said, “The defendant denies paragraph 4, and says further that he had never had any dealings with the Bank, and they must have sued the wrong person”, nor “… that it was not him but his cousin with the same name who mortgaged his house to the Bank”. I thought that was uncontroversial, but it proved not so.
In Keith Hercules v Magistrates’ Court of Victoria [2008] VSCA 1, Mr Hercules, a Melbourne sole practitioner, applied to strike out the defence of a personnel agency he sued. He pointed out that the Magistrates’ Court Rules are peculiar in requiring reasons to be given for denials. He failed, and was ordered to pay costs. Instead, the Magistrate ordered the provision of further particulars. It seems that Mr Hercules had acted peremptorily, without first raising his complaints with his opponent, as is the custom. As the Court of Appeal said: Continue reading “Hercules and the Magistrates’ Court rule requiring reasons for denials in defences”
Stephen Keim SC, Dr Haneef’s barrister
A delegate of John Britton, Queensland’s Legal Services Commissioner, has declined to lay disciplinary charges against Dr Haneef’s lawyer, Stephen Keim QC, despite finding a clear breach of a rule of professional conduct, and that — to my astonishment — Mr Keim gave his client’s record of interview to The Australian without having sought Dr Haneef’s instructions. Continue reading “Stephen Keim SC, Dr Haneef’s barrister”
NSW wills and estates lawyers to have fees capped in family disputes
The Sydney Morning Herald reports plans by the NSW Attorney General to cap fees proportionately to the amount at stake. The article is a bit light on what that means exactly, but the Law Society of NSW President purported to welcome the changes.
The English profession
Update, 12 February 2008: Apparently there’s a lawyers’ phones bugging scandal over in England. Sounds like a fairly substantial problem to me. I’ll keep you posted, if I ever find the time.
Original post: Here’s a pithy little article in The Times about 3 English lawyers’ liability cases. Well worth the small effort to read it, though the promise ‘How to Avoid a Professional Negligence Claim’ is, with respect, overarching.
Legal Blog Watch has an article on the increasing power of American firms in the London market. 3,900 lawyers in London are working for US firms, they say.
Here’s The Guardian on the difficulties of eradicating the scourge of the white upper class privately educated former barrister from the judiciary over there. Deputy Premier Hulls should take a sabbatical, and a room at Australia House, and engage in some high powered consultancy.
The Times has an article about the new Chairman of the English Bar, Tim Dutton QC, a professional negligence specialist. The whole article is worth reading. He is thinking about to what extent to market direct access retainers between clients and barristers leaving out the middlemen solicitors on the basis that the junior bar represents the best value in the legal market, and to what extent to keep the main source of work, solicitors, content by preserving the status quo. He is thinking about the discussions about allowing barristers to form partnerships in England. He points out that though the top barristers are amongst the best paid in society, 30% of barristers’ under 3 years’ call earn less than £10,000 ($22,500) on publicly funded work. The article concludes with some key facts about the Bar, which numbers 15,000 barristers:
So long as you don’t intentionally fail to turn up when briefed, no problem
Senior Member Howell’s decision in Crawford v Kennedy [2008] VCAT 5 begins:
‘Mr. Gilbert Crawford was a defendant in proceedings to be heard in the Magistrates’ Court on 29 March 2006. He was impressed by [the late] Mr. Peter [H] QC when he saw Mr. [H] on a television programme. Mr. Crawford went to see Mr. [H] and engaged him to appear on his behalf at the hearing in the Magistrates’ Court.’
A Melbourne solicitor, presumably giving evidence on oath, was described as ‘not an impressive witness’ who was ‘determined not to give an answer unfavourable to Mr. H,’ which she presumably won’t be too happy about. Interestingly, she is quoted in this article in The Australian as saying that her one-time boss, tax lawyer Michael Brereton was using Mr H almost full-time before Mr H died. Mr Brereton was being irritated by a dispute with the tax man in the Supreme Court, and retained Mr H to ameliorate the irritation, but was also briefing Mr H on behalf of his own clients, according to the article. It was Mr Brereton’s case which Mr H attended to on 29 March 2006, instructed by the female solicitor, who had by then gone out on her own, and was acting for Mr Brereton. Continue reading “So long as you don’t intentionally fail to turn up when briefed, no problem”
Webcasts of court proceedings
‘Your Honours, counsel, my name is Gerry Hall and I am the attorney representing Lyndell Howard, the defendant in this case. You know, I got up early this morning and I reviewed the trial court pleadings, and the motions we had filed there in the trial court, the transcripts of some of the testimony. I looked at the trial court briefs, and then the Supreme Court briefs, trying to better develop my argument and then it kind of dawned on me — this is all stoopid. You’ve all read everything we’ve put before you, and I don’t need to bore you with recitations of what Greever or Felinar or all those other cases say, or the significance of s. 5-3-1 of the Criminal Code, and how that applies here. They may have helped to get us here, and I think they certainly are supportive, but I think the real problem, and the reason we have cases interpeting this official misconduct statute, is that it’s just not entirely clear. If it were, we wouldn’t be here. Because it would be, you know, black and white.’
So began the case of Williams v Manchester in the Supreme Court of Illinois. They upload video of the submissions to the internet. It’s an appeal court, so many of the objections to televising court proceedings do not apply with the same force. Watch the case here, if only for an insight of how differently they do things over there (see above: ‘You know, I got up early this morning and…’). Or you can look at a case summary, read the written arguments as .pdf files, watch the oral arguments, and read the judgments in certain cases of the Florida Supreme Court here. More options at the bottom of this page. All this I learnt from this blog.
WARNING: costs agreements and bills require amendment
Since 6 December 2007, the maximum interest chargeable on bills has dropped from 12% (the penalty interest rate) to the Reserve Bank Target Rate +2% (at the time of writing 8.75%), and the period of non-payment after which you can begin charging has changed too. You need to amend your bills because if you don’t put the right statement on them, you won’t be able to recover interest unless you dream up some sophisticated arguments. In the case of ongoing retainers, you probably need to send the first new bill of the new regime under cover of a letter advising a change in the rate applicable to unpaid bills. Otherwise, you might fall foul of the ongoing obligation to disclose any substantial changes to anything previously disclosed.
You do not have to express the interest chargeable as a percentage rate per annum. In my experience, the only time anyone ever charges interest is when suing for fees, after the relationship has broken down, or demanding payment of fees as a condition of staying on the record or giving up a file subject to a lien. Perhaps that was because the rate was so punitively high, and perhaps because too few people knew about the penalty interest rate calculator on the internet. Why not set a lower rate which is dead easy to calculate and actually make a habit of collecting interest? So long as the rate you are effectively charging works out lower than what you would charge if you charged the maximum annual percentage rate over the same period, you’ll be sweet. Read on to find out the answer to the questions someone in your firm is sure to ponder at some stage in the future: does it apply to bills given before 8 November 2007? Does it apply in retainers in which instructions were first taken before that date?
Continue reading “WARNING: costs agreements and bills require amendment”
How to calculate interest on post-5 December 2007 bills in Legal Profession Act, 2004 (Vic.) matters
What follows assumes that you have not made any special agreement in a costs agreement, and so the default position applies. It is truly an idiot’s guide because (i) I have great sympathy for people who have difficulties with numbers, and (ii) I well remember how grateful I was when a partner of Middletons, Mark Howard, showed me as an articled clerk how to calculate penalty interest. Continue reading “How to calculate interest on post-5 December 2007 bills in Legal Profession Act, 2004 (Vic.) matters”
2007 a review: law and war
Happy new year, readers. 2007 was a big one for me, and it seems that lots of interesting things happened. So I made a list.
The Bar: My senior mentor, Peter Riordan SC, was elected Chairman of the Bar Council. Peter Hayes QC died, and the Ethics Committee took Peter Faris to task for commenting to excess on drugs in the profession. Mr Faris joined the Law Institute in lieu of the Bar. Former solicitor-advocate Andrew Fraser got out of jail and published his memoirs, Court in the Middle. Julian Burnside wrote an excellent book. Good people joined the Bar, including Tony Horan, formerly a partner of Phillips Fox, and Lisa Nichols, formerly a partner of Slater & Gordon Ltd, suggesting that it is a healthy institution. Mark Dreyfus QC was elected into Federal Parliament, Jeff Sher QC retired, and Peter Cawthorn, Dr Ian Freckleton, and Kerri Judd, all leaders of the professional negligence and/or discipline bar, took silk. Ross Ray QC assumed the helm at the Law Council of Australia.
The Bench: Justice Kiefel was appointed to the High Court from the Feds, the Howard Government’s 6th appointment after Justices Hayne, Callinan, Gleeson, Heydon and Crennan. She was the trial judge in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the case which is commonly understood to mean that you can always amend your pleadings at any time, contrary to her Honour’s view that sometimes, enough’s enough. Justice Callinan, the protagonist in Flower & Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 744, one of the key legal ethics cases of recent times, retired after nine and a half years. Lex Lasry was appointed to the Supreme Court. He was one of the blokes who campaigned against the execution of Van Nguyen, and was a legal observer at David Hicks’s show trial. Also appointed were Jack Forrest, Ross Robson, Paul Coghlan (ex-director of the Office of Public Prosecutions), and Tony Pagone (a tax lawyer with a keen interest in human rights who was reappointed after a tenure of 9 months in 2001 and 2002). The Court of Appeal had added to its bench Murray Kellam and Julie Dodds-Streeton. So 1 in 5 Supreme Court judges was appointed this year. Justice Gillard retired after ruling that Dr Abbie Lee was not defamed in the Herald-Sun‘s ‘Medibonk’ articles which called her a madam and a fraud. Justices of Appeal Callaway and Eames retired too.
Michelle Gordon, to whom the High Court’s Justice Hayne is married, was the only Melbourne appointment to the Federal Court. Former Federal Court judge Marcus Einfeld QC was committed to stand trial for perjury after pleading not guilty.
Blogs: Melbourne lawyers Peter Faris, Leagle Eagle, Dr Mirko Bagaric, and Nicky Greenberg all wrote interesting blogs, mostly not about the law. Jamie Wodetzki, also a Melbourne lawyer, published the excellent Breakfast Blog. Club Troppo‘s ‘Missing Link‘ rounded up the best posts from Australian blogs twice a week or so: well worth subscribing to.
Books: Monash’s Professor Adrian Evans and Melbourne’s Christine Parker put out a book Inside Lawyers’ Ethics. Walmsley, Abadee and Zipser did great with the second edition of Professional Liability in Australia. University of Woollongong’s Ainslee Lamb and John Littrich put out Lawyers in Australia. Jason Pizer published the 3rd edition of his Annotated VCAT Act. The 9th edition of Keith Fletcher’s The Law of Partnership in Australia hit the stores. Former actress, barrister and ABC Radio National ‘Law Report’ compere Susannah Lobez published Gangland Australia. Leigh Sales published a book about David Hicks, Detainee 002. J.K. Rowling‘s Harry Potter and the Deathly Hallows sold over 8 million copies in the first 24 hours of its release. Black Inc.’s The Monthly continued, unlike most in its genre, to publish, suggesting this might actually be the new quality news magazine which sticks around. Helps when your publisher, Morry Schwartz, is a property developer I suppose. (A bit off-topic, but Bali got Lawyers’ Lawyered this year, so: Black Inc. also published Under the Volcano; The Story of Bali. Former English property lawyer Jonathan Copeland published another good book about Bali — a rare thing — Secrets of Bali.)
Crime, and alleged crime: Christopher Hudson allegedly shot Norton Gledhill solicitor Brendan Keilar dead outside the Rialto where I had been working until a couple of weeks before. A martial arts enthusiast is suspected of killing Pumpkin’s mum, and cast Pumpkin adrift at Spencer St. Carl Williams said that in an ideal world, he wouldn’t have executed Jason Moran in front of his kids, and Justice Betty King responded to point out that in an ideal world he wouldn’t have executed him at all. In an ideal world wife Roberta probably wouldn’t have expressed disappointment that Carl would be behind glass, making spitting in his face problematic, and Jason probably wouldn’t have hired two hit men to gun Carl down at his daughter Dhakota’s christening, giving Carl the idea of the execution with kids in the first place. The Herald Sun must have been spewing about the 35 year fully catered luxury State holiday Justice King granted him despite his insolence. Tony Mokbel was found in Greece. Bad wig. Peter Dupas was convicted of another murder as a result of confessions made to Andrew Fraser. Paris Hilton went to jail, prompting this peculiar peaen from Dr Bagaric. Continue reading “2007 a review: law and war”
Cases, cases
Update, 19 February 2008: Fellow Melbourne law blogger Legal Eagle has kindly written a case note on Equuscorp v Wilmoth Field Warne.
Update, 21 December 2007: Another two advocates’ immunity cases:
1. Symonds v Vass [2007] NSWSC 1274, 36,000 words, after nearly 3 weeks of trial. See Ysaiah Ross’s case note in his article in The Australian on 30 November 2007 titled ‘Let’s Dump Advocates’ Immunity’.
2. Mallik v McGeown [2007] NSWSC 1414.
Update, 19 December 2007: Fellow Melbourne law blogger Legal Eagle has done an excellent case note on the first case referred to below, saving me the trouble.
Original post: The Supreme Court and Court of Appeal is dropping cases on this blog like no tomorrow. I can’t keep up, so I will just bring them to your attention for the time being:
1. Re Legal Practice Act 2004; re OG, a lawyer [2007] VSC 520, in which the Court of Appeal today struck off the roll a barrister whose disclosure to the Board of Examiners about an allegation at university that he cheated on an assignment was found to be a lie. Legal Eagle provided a long note of the case here. In other news, a famous American judge, Richard Posner, wrote a book on plagiarism. He blogs too. Update: 29 January 2008: And compare this American case (In the Matter of Willie Jay White, Supreme Court of Georgia) about an applicant for admission to practice which was denied because his explanation for curious similarities between his work and another’s at law school was not believed.
2. Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280, a case about whether estoppel by convention could operate against the prima facie disentitlement in a solicitor to recover fees under a void costs agreement, and about where exactly the dividing line is between a void and a good costs agreement. It is the latest in a long saga.
3. Coadys (a firm) v Getzler [2007] VSCA 281, a case covering much the same territory as the Equuscorp Case. This case and the previous one will be very important for the interpretation of the Legal Profession Act, 2004‘s costs provisions.
4. Francis v Bunnett [2007] VSC 527, in which Justice Lasry dismissed an application for summary judgment by reference to advocates’ immunity in a classic regretted settlement case. That is, his Honour was not persuaded of the hopelessness of the client’s argument that where there has been no adjudication after a trial, there is no finality of the kind protected by the immunity which is worthy of protection. It is notable that a number of cases which have gone the other way are not mentioned in the judgment.
5. MM&R Pty Ltd v Grills [2007] VSC 528, a decision of Justice Cavenough yesterday about the availability of advocates’ immunity as a defence to a suit alleging simple delay, and where there has been no adjudicated decision of a court worthy of protection. His Honour recognised that the immunity applied in such circumstances.
It will be interesting to read the two advocates’ immunity decisions more carefully, and tease out to what extent they are consistent with one another.
Sudden eruption of unconscionability amongst solicitors further documented
Updated, 4 January 2008: See the underlined additions below (with thanks for the references to Jason Pizer’s book at p. 246).
Original post: Now two unrepresented folk have managed to convince VCAT’s Legal Practice List’s Member Butcher in a Fair Trading Act, 1999 claim that yet another solicitor has been acting unconscionably towards his clients in relation to fees. The decision in Alexander v HWL [2007] VCAT 2297 (and two earlier decisions posted about here and here and here) suggests two separate schisms between VCAT’s decision makers:
- The first between those who hold that solicitors engage in trade or commerce when they provide professional services to clients (such as Member Butcher) and those who hold that they do not (such as Senior Member Howell and Deputy President Steel); and
- Secondly, between those who emphasise that only in cases of highly unethical behaviour should a finding of unconscionability be made (such as Senior Member Vassie) and those who presumably consider that test to be a little on the stringent side (such as Member Butcher). Continue reading “Sudden eruption of unconscionability amongst solicitors further documented”
Why you needn’t call a solicitor an ‘Australian legal practitioner’
Update: The nice thing about blogging compared with, say, writing a book (not that I would know) is the interactivity. Lawyers are obviously still a bit chary of the comment function, given how many of them email me rather than comment. Nothing prompts the sharpening of e-pencils quite like an error, and it seems I have made one, in an article, ironically, about errors of exactly the same species. To stem the deluge of correspondents (which stands at 2) let me recognise that ‘beaks’ are not, in common parlance, lawyers, but Magistrates, and judges, possibly even tribunal members. I am not convinced that all of the guests on 3RRR’s Lawyers Guns & Money’s impossibly amusing ‘Beak of the Week’ segment were such folk, but then again, that was a long time ago.
Original post: Often enough, I see pleadings against barristers, and against solicitors, which recite that the defendant is an Australian legal practitioner within the meaning of the Legal Profession Act, 2004. I am often unsure why. I think it would be fine to plead that the defendant is a solicitor, or a barrister. The other day, I came across a decision of Justice Byrne which considered a somewhat analogous question in a completely different context: Smith v Harris [1996] 2 VR 335. It reassures me that changes in statutory language need not necessarily affect the use in the law of ordinary language: see below. But there are moments when the language of the Act should be pleaded, and when you must, as a matter of law, call yourself an Australian legal practitioner rather than any old beak. Continue reading “Why you needn’t call a solicitor an ‘Australian legal practitioner’”
Two Age articles about the Supreme Court
Tucked away in the business section of Saturday’s Age are two articles about the Supreme Court, and its funding difficulties. They don’t seem to be online, but here’s another article with much the same flavour: the Court needs more resources and new ideas to deal with civil trials. What follows is a stream of consciousness rant based only on anecdotal evidence, against the whole profession of litigators and reformers too timid to contemplate anything other than tinkering at the edges, rather than criticism of the Court. I am happy to acknowledge that some of the suggestions might turn out to be misconceived, but I wish I heard more discussion of this kind at the moment when there is a civil justice review on foot. Continue reading “Two Age articles about the Supreme Court”
Mediators’ immunity questioned
Freehills’ Ken Adams taught me a lot in my first years as a solicitor. He used to delete the immunity clauses in mediation agreements before having his clients sign them. I have occasionally done likewise. Mary-Anne Noone wrote an article in the October Law Institute Journal riffing off Tapoohi v Lewenberg (No 2) (2003) VSC 410. It is titled ‘Liability Matters for Lawyer Mediators’, and its citation is (2007) 81(10) LIJ 52. Unless you are an LIV member, you won’t be able to access it, but its point is simple: that all those clauses which mediators pop into mediation agreements immunising themselves are void, if the mediator holds an Australian practising certificate and the mediation occurs in Victoria. They are void for infracting s. 7.2.11(2) of the Legal Profession Act, 2004, which says: Continue reading “Mediators’ immunity questioned”
Disgruntled clients and the web
This year, I acted for a man who was so pissed off with a used car salesman, that he set up a webpage to recount his experiences. Say for the exercise the business was called Jack Maggs and Daughters Used Cars, and that its website was www.jackmaggs.com.au. My client purchased www.jackmaggs.com and went to town, in an indignant but truthful kind of a way. A suit for defamation followed. I pleaded the defence of truth, and particularised all the wrongdoing in detail. There it sat, on the public record, available to be inspected by the public. A confidential settlement was arrived at. The website is no longer there, but my client had by then made his point. Legal Blog Watch’s post ‘Who Needs a Lawsuit for Excess Fees When You’ve Got the Internet?‘ has alerted me to this website, which must strike terror into the hearts of many a law firm. It is apparent from the site that the firm has responded in the media, and the disgruntled client has responded with vigour on the blog, and on and on it goes.
The blogosphere is part of this whole trend. Consider the opprobrium which Reed Smith, a big international firm, has earned itself — rightly or wrongly — when it allegedly estimated its fees at US$50,000 in ‘a routine employment discrimination case’ and then charged its not-for-profit client 20 times that amount. See for example this post and this one, from Law.com and Legal Blog Watch respectively.
“this letter will be used on the question of costs”
I came across a really bad interstate solicitor a while back. One of his peccadillos was to write, at the end of all of his letters to my instructor — his opponent — ‘We thank you for your cooperation, and if you have any queries please do not hesitate to contact us.’ The thing is we so weren’t cooperating. I just kept on objecting to the affidavits of merits put up in support of the application to set aside a default judgment until his client decided it was no longer worth the effort. His other favourite line was ‘This letter will be used on the question of costs’ to which I thought ‘Yeah, right.’ I don’t think I ever use that purported threat in correspondence. What’s the point? But it’s so commonplace a tic that I wonder whether there is in fact any good reason for it, whether it might be a hangover from the past and I’m too young to get it. So, my question: has anyone ever crashed and burned, unable to use a letter on the question of costs for want of such a sentence? Anyone want to defend the practice? (Of course, we’re not talking about Calderbank letters here. Putting ‘without prejudice save as to costs’ on a letter is useful, no doubt.)
Getting documents out of insurers
If I recall correctly, one of my first contested hearings as a young solicitor was about whether the claim for privilege over a loss adjuster’s report in an affidavit of documents drafted by me was kosher. I went on to write an article on the subject in that august journal, the newsletter of Women in Insurance’s Victorian chapter. The law was all over the place. Now Wotton & Kearney have put out a note of a substantial decision on the same issues: privilege of documents in the hands of an insurer brought into existence at a time when proceedings were merely anticipated. The case is Southland Coal Pty Ltd (Receivers & Managers Appointed) (In Liquidation) [2006] NSWSC 899. It is a decision which is favourable towards insurers and takes an expansive rather than restrictive approach to the question. The article appears in the firm’s inaugural annual insurance review, but its author, Sydney senior associate Brendan Hammond has given me permission to reproduce it.
This is one of the points made:
‘some of the disputed documents were emails exchanged between officers of the insurer, or between an officer of the insurer and a third party. It was held that the issue was not whether those emails were privileged but whether granting access to them would result in disclosure of privileged communications such as the provision of legal advice by the insurer’s lawyers.’
That is consistent with Justice Chernov’s majority view of waiver in Spotless Group Ltd v Premier Building & Consulting Pty Ltd [2006] VSCA 201, and inconsistent with Neave JA’s minority view. Now, here’s the article in full:
Latest case on privilege and inadvertent disclosure
If there is one area of the law which has always seemed to me to be all over the place (though I never really sat down and tried to nut it out), it’s the law of privilege in its application to the inadvertently disclosed document. The latest English decision is MMI Research Ltd v Cellxion Ltd and others [2007] All ER (D) 142. It says that there will be a waiver unless the recipient ought to have known that a mistake had been made. In this case that could not be made out. CMS Cameron McKenna’s Law Now note on the case is here.