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Australian law blogs go mainstream

Update, 18 October 2007: What’s more, major law firms are beginning to Vodcast. That’s kind of like grown-up YouTube. Take this example, where 2 Clayton Utz partners emphasise the importance for successful litigation of keeping the originals of documents.

The Sunday Age has an article on law blogs, hot on the heels of a Lawyers’ Weekly feature on some Freehills lawyers who are blogging with the blessing of the powers that be. I can’t find the latter online and so can’t link to it.

I suspect the proposition that ‘Many specialist lawyers and academics are blogging on pet topics such as intellectual property.’ might overtstate things a bit. But apparently ‘lawyers and judges’ (aren’t judges lawyers?) are the fourth biggest group of bloggers and of blog readers:

‘While the US Blawg site blawg.org is now tracking 1773 blawgs across the US, exact Australian blawg numbers are impossible to find among the estimated 70 million blogs in cyberspace. A survey by US advertising firm Blogads.com found that legal professionals were the fourth-largest group of bloggers, behind people working in education, computer software and media. Lawyers and judges were the fourth-biggest group of blog readers, behind computer professionals, students and retirees.’

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VCAT does not invoke Fair Trading Act to cure want of Legal Profession Act jurisdiction

In Huang’s Case [2007] VCAT 1692, Senior Member Howell was presented with a case brought by a man who had initiated the Legal Profession Act, 2004‘s lawyer-client costs dispute process by lodging a civil complaint with the Legal Services Commissioner. The scheme of the Act is that the Commissioner tries to settle the dispute, and if she can’t, she gives the punter a ticket to take the dispute to the next level, VCAT’s Legal Practice List: s. 4.3.7. Mr Huang jumped the gun, and didn’t wait to get his ticket before commencing VCAT proceedings.

Senior Member Howell dismissed the dispute for want of jurisdiction. Because of the implied repeal of the (Victorian) Legal Profession Act, 2004 insofar as it relates to many aspects of solicitor-client costs charged in Family Court proceedings by the (Commonwealth) Family Law Act, 1975, there was no discussion of recognising a jurisdiction under s. 108 of the Fair Trading Act, 1999 and using that to establish jurisdiction. Very appropriate too, since it would be logical that the Fair Trading Act, 1999 is no less impliedly repealed in its application to lawyer-client costs disputes which are governed by the Family Law Act, 1975 than the Legal Profession Act, 2004. Continue reading “VCAT does not invoke Fair Trading Act to cure want of Legal Profession Act jurisdiction”

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Accord and satisfaction as a defence to a professional negligence claim

In Anfuso’s Case [2007] VCAT 1690, Member Butcher of VCAT’s Legal Practice List gave summary judgment for a solicitor by reference to the principles of accord and satisfaction. The solicitor had sued for her fees in the Magistrates’ Court. She got default judgment against her former client, and got an order that his employer pay some of his wages directly to her in satisfaction of the judgment debt. He applied to set it aside. They settled the whole thing. He promised to pay the balance owing and in return, she agreed to the setting aside of the judgment and of the attachment of earnings order. Then he decided to sue the former solicitor in VCAT, and it was this suit which was thrown summarily out of court. Member Butcher described the claim:

‘Mr Anfuso engaged [the solicitor] to act on his behalf in relation to the purchase of a property. The legal services were quoted at a certain price with a proviso that additional work would be charged in the event of any difficulties. Some difficulties did arise and additional charges were made. It is not a matter that I need dwell upon, the propriety of the charges, however this application made by Mr Anfuso is seeking re-payment of moneys paid by him in relation to that work and subsequent legal costs incurred when [the solicitor] sued him for those fees but also his own legal expenses. The particulars of the claim also make allowance for an amount of professional fees which were originally quoted.’

Whatever cause of action Mr Anfuso might have had seems to have merged, in Member Butcher’s view, in the settlement agreement.

I once tried to sort out the differences between res judicata, issue estoppel, Anshun estoppel, and accord and satisfaction by way of introduction to the rule against collateral attack in ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ (2002) 10 Torts Law Journal 167. This is what I said, though the formatting is a bit impoverished by the transition to the blog: Continue reading “Accord and satisfaction as a defence to a professional negligence claim”

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Leading, senior and respected solicitor convicted over $0.75M fraud suspended till 2013

In Legal Services Commissioner v. RDS [2007] VCAT 1835, a ‘leading, senior and respected member of the profession’ defrauded both his client and the revenue of three quarters of a million dollars.  He had been sentenced to 3 years’ imprisonment, suspended for 3 years, having pleaded guilty in the criminal court.  He cooperated with the authorities, voluntarily handed in his practising certificate, pleaded guilty to misconduct at common law in the charge brought in VCAT by the Legal Services Commissioner, and conceded through his counsel that a substantial period of suspension from practice was warranted. He paid the revenue the money after he was caught. His daughter was ill at the time of the offence. Apparently he has given a  lot of money to charity.  Much was made of this.  Perhaps too much; the sentencing remarks as hagiography form of literature sometimes makes me uneasy. Maybe society’s denunciation of this crime took place in the sentencing remarks of the judge in the criminal case, but there was little by way of denunciation in these reasons. Anyway, the solicitor’s practising certificate was suspended until mid-2013, justified by general deterrence since the solicitor was in Israel, contemplating relocation there and not intending to practise again. A Full Tribunal with Judge Bowman presiding said at [14]:

‘Whether or not [the solicitor] is likely to offend again, and we would be of the view that he is highly unlikely so to do, principles of general deterrence must be borne in mind. There is also the question of the damage that is done to the standing and reputation of the legal profession in the eyes of the public if someone who could be described as a leading, senior and experienced member of the profession engages in fraudulent activity of this kind.’

It seems this was a plea, that there was no contest and full cooperation. The hearing could not have gone longer than an hour or two. It is interesting then that the Commissioner was awarded costs of almost $6,000.

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NSW Supreme Court says solicitor immune from suit for out of court omissions

Update, 12 March 2009: The advocates’ immunity part of the trial judge’s reasons did not really survive on appeal: Coshott v Barry [2009] NSWCA 34. Quite where that leaves the authority of Keefe v Marks (1989) 16 NSWLR 713, a decision of Chief Justice Gleeson, remains to be worked out. Justice of Appeal Ipp with whom and Justices of Appeal Beazley and Campbell said, remarkably pithily:

‘Advocate’s immunity
61 James J also rejected the Citibank Claim “by reason of advocate’s immunity”. His Honour said, “[d]etermining what claims for relief should be included in the pleading was work done out of court which led to a decision effecting the conduct of the case in court.”

62 In my opinion, this finding by his Honour went too far. Mr Coshott’s case was that Mr Barry breached his duty to advise virtually from the inception of the retainer. Such an alleged failure would be too far removed from the actual conduct of the trial to be covered by the doctrine of advocate’s immunity. I do not think that, when the retainer commenced, a failure to advise as alleged could be regarded, properly, as leading to a decision affecting the conduct of the case in court (Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 560 per Mason CJ). The period from the time the retainer commenced to the trial itself was too long for the requisite connection to the conduct of the case in court to be established.’

and

’76 Having regard to the degree of control exercised by Mr Coshott over the proceedings, and to the fact that senior counsel did not query the admissibility of Mr Davis’s report, I consider that James J was correct in finding that, had Mr Barry advised that Mr Davis’s evidence was not admissible, Mr Coshott would have not accepted that advice. For the reasons given in connection with the Citibank Claim I do not consider that his Honour ignored s 5D of the Civil Liability Act when making this finding.

77 The question whether the defence of advocate’s immunity applies to the PSO claim is open to question. Mr Coshott contended that Mr Barry breached his duty in regard to the admissibility of Mr Davis’s evidence as from the time Mr Davis provided his report; hence, the breach occurred too long before the trial to be regarded as involving a decision affecting the conduct of the case in court. There are difficulties in determining this question, as it is not clear when Mr Barry was first duty-bound to consider the admissibility of the report. It may well be that James J correctly decided that Mr Barry’s conduct in regard to Mr Davis’s report involved “[w]ork done in deciding what witnesses should be called and what evidence should be sought to be adduced from them” (as his Honour put it). In view of the other conclusions to which I have come in regard to the PSO Claim, it is not necessary to decide this issue.’

Original post: The New South Wales Supreme Court yesterday gave judgment for a solicitor on an advocates’ immunity defence to a claim of professional negligence in respect of out of court work by the solicitor. The decision of Justice James was in the matter of Coshott v Barry [2007] NSWSC 1094. This disciplinary decision seems to be related in some way: Law Society of New South Wales v Vardas [2006] NSWADT 118. Anyone want to contribute a case note to this blog? Could be a while until I get around to it. What the Court said about immunity in the first case is reproduced below: Continue reading “NSW Supreme Court says solicitor immune from suit for out of court omissions”

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Firm publishes big book free online

I’m just going to cut and paste this article from Legal Blog Watch, and hope that its author Caroline Elefant won’t mind. I have little to say on the topic which is not already pithily set out by her, but will draw your attention to one section of the book in particular, the bit on Cross Border Legal Ethics.

I’m sure we’ll see this sort of thing in Australia. It will start by smart firms bundling up all their newsletters into one booklet on a topic, distributing it in hard copy and then making it available online too. That will happen when people realise the design possibilities of publishing in .pdf format. I write this blog in large part because having to explain a case in simple language makes me remember it much better than if I just read it. I think benefits will come to firms who encourage their solicitors to write for publication, despite what marketing folk might say. It is necessary to consider the benefit to the knowledge base of the lawyers who write, as well as the direct marketing potential of the publication. Here it is:

‘Law Firm Puts Treatise Online

Bruce MacEwen shares this news about a comprehensive, online book introduced by Proskauer Rose and entitled “International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes.” The book, prepared by 50 Proskauer lawyers, provides 28 chapters of readily accessible and detailed information on international litigation. Continue reading “Firm publishes big book free online”

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Latest English solicitors’ liability newsletter

Here’s the latest from Reynolds Porter Chamberalain. Contents this edition include:

The High Court considers the scope of a solicitor’s duty of care in his dealings with an unsophisticated client

In Phelps v (1) Stewarts and (2) Dinsmore [2007] EWHC 1561 (Ch) the Court rejected a solicitor’s argument that her retainer was of a limited nature, given the complexity of the matter concerned, and the fact that the client was unsophisticated.

The High Court considers whether the removal of advocates’ immunity from suit is of retrospective effect

In Awoyomi v Radford [2007] EWHC 1671, the High Court held that the removal of advocates’ immunity from suit was retrospective and that accordingly a claim against two barristers was statute-barred.

The Court of Appeal exercises its duty to say that the judge applied the law to the facts wrongly, regarding extent retainer

In Stone Heritage Developments Limited and Others v Davis Blank Furniss (a firm) [2007] EWCACiv 765, the Court of Appeal held that the judge at first instance had erred in his finding that the defendant solicitors were negligent in failing to advise the claimant of one risk but not negligent in not advising of a similar risk.  The solicitors had not been negligent at all.

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More loss of a chance cases

Here’s a useful little article from Curwoods Lawyers on loss of a chance specifically in commercial cases.  I  can never quite keep up with the law on loss of a chance and suspect it’s because (i) there are two parallel lines of authority, one in commercial cases and one in medical negligence cases and (ii) all the cases are so turgid that nobody can be frigged reading them all and marrying up the two streams.

I am indebted to Michael Salter at DLA Phillips Fox, one of those rare lawyers who truly enjoys his job, for the reference to this recent decision of Justice Brereton in Sydney, whom I’m reliably informed by an ex-Sydneysider is regarded with a degree of reverence in professional negligence circles: Vukancic v Velcic [2007] NSWSC 1001.  It’s a double whammy loss of a chance case about a man who hired a solicitor to sue his employer.  Then sued a second solicitor to sue the first for negligence, and then hired a third to sue the second after the second let the limitation period run out against the first. There’s not much law in the decision, but all the calculations and considerations are set out diligently, so it is a useful study in how the law is applied in practice.

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Ways for lawyers to cope with costs disclosure defaults

Under Victoria’s Legal Profession Act, 2004 the most apparently draconian consequences follow for the slightest non-compliance with any of the elaborate pre-retainer disclosures required to be made by solicitors. Under s. 3.4.17, if the lawyer has not disclosed something required by the relevant bit of the Act to be disclosed:

  • the client ‘need not pay the legal costs until they have’ been taxed as between solicitor-client in the Supreme Court, generally at the solicitor’s expense;
  • the solicitor ‘may not maintain proceedings … for the recovery of legal costs’ until the end of such a taxation; and
  • the client ‘may apply … to set the costs agreement aside’.

In Dennis v Cameron [2007] NSWCA 228, the New South Wales District Court and its Court of Appeal unanimously decided a case about failures to disclose various things in a bill of costs (and by operation of NSW legislation, the result was that no suit could be brought on it for recovery of fees claimed in it). If the case is followed in Victoria and extended to pre-retainer costs disclosure defaults, some balance might be introduced into the unprecedentedly strict regime introduced on 12 December 2005, which I reckon the profession is just beginning to feel the bite of. I was in VCAT’s Legal Practice List today battling over my solicitor client’s bill of costs, and she was certainly complaining. The decision suggests that:

  • the defects may be waived by the client, after which he or she will be estopped from relying on them (at [39] having cited In re Gedye (1851) S.C. 20 L.J. Ch. 410);
  • little compromises in relation to outstanding fees may amount to fresh contracts which may be sued on even if the original bills could not, so that the subsequent suit is not ‘to recover legal costs’ but is for breach of the compromise, and so is not barred by the prohibition on maintaining such suits before completion of a taxation (trial judge’s judgment, see Court of Appeal’s judgment at [22], citing Koutsourais v Metledge & Associates [2004] NSWSC 313; and
  • it is unnecessary to disclose to a client that which he already knows (at [46], citing Hogarth v Gye [2002] NSWSC 32 at [25].)

The decision is a wake up call to the profession which tends to be unable to focus on anything other than the legislation. But the legislation is not a code. A costs agreement remains a contract, and all the law that flows around contracts — including equity — can be brought to bear, to the extent not inconsistent with the legislation. There is a lot of law about retainers and costs agreements, and it can be worth looking up (undoubtedly the best place to start is Dal Pont’s Law of Costs in Australia). There is also much room for original thought by those who have a good grip on the law of obligations. Continue reading “Ways for lawyers to cope with costs disclosure defaults”

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Bills of costs must be signed by principals or employees: what does that mean?

Update: 6 January 2008: Pinna v Kuek [1999] VSC 204 is a decision about the correlative section under s. 107, Legal Practice Act, 1996, which said (2) A bill of costs – (a) must be signed by – (i) the legal practitioner…’. O’Bryan J held that a letter signed by the legal practitioner enclosing a 10 page unsigned itemised bill of costs satisfied the requirements of the provision. Now that is made clear by the Legal Profession Act, 2004, since amendments which came into operation in 2007. The provision is s. 3.4.34(2A). Furthermore, it is no longer necessary for a partner of a firm to sign a bill. Any lawyer, including employees of the law practice rendering the bill may do so: s. 3.4.34(2).

Dennis v Cameron [2007] NSWCA 228 is a very interesting case about bills.

Original post: The law on what constitutes a signature is:

‘the fact an actual signature is not the result of the act of signing is not critical to the validity of the document. Even a form with a signature impressed upon it by a printing machine[6] or where the person signing places upon the document an engraved representation of that person’s signature by means of a rubber stamp[7] have been held to satisfy the statutory requirement of a signature. A telex signature has also been held to be sufficient to constitute a proper signature.8] The critical element appears to be that the signature must also contain the additional characteristic that the person making the mark approves of the contents of the document.’*

Hoeben J said much the same thing at [42] in Dennis v Cameron [2007] NSWCA 228 in the context of a NSW statutory provision which says that a bill of costs must be signed by a partner of a firm, or by a barrister, or an employee of either. That case is also the subject of the next post. Continue reading “Bills of costs must be signed by principals or employees: what does that mean?”

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25 handy hints on affidavits in Victoria

I presented a seminar with Glenn McGowan SC on affidavits and written evidence recently. I wrote a long paper, mainly about the state courts, but incorporating some aspects of Federal Court procedure, which I will send to anyone who asks for a copy, and which will probably end up on the blog replete with useful hyperlinks one day. Meanwhile, here are some handy hints on affidavits which are not always properly understood:

  • a deponent who makes an affidavit in a work capacity can state their business address instead of their residential address, but the condition of doing so is that they state the name of their firm or employer, if any, and the position they hold: Supreme Court Rule 43.01(3);
  • in the Supreme Court, you can call for an electronic copy of an affidavit to be emailed to you if served with a hard copy, by invoking Practice Note No. 1 of 2002, (2002) VR 107;
  • you can call for any document referred to in an affidavit by a notice to produce under Supreme Court Rule 29.10(2), and the rule is interpreted to mean that you can call for production of any document referred to in an exhibit to an affidavit: Williams [I 29.01.345] citing Re Hinchcliffe [1895] 1 Ch 117; Continue reading “25 handy hints on affidavits in Victoria”
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English cases on auditors’ liability to third parties and on architects’ liability

England’s CMS Cameron McKenna, whose free ‘Law Now’ service is well worth subscribing to, have a couple of interesting articles on their website about auditors’ liability to third parties. Apparently, England has devised legislation, the Company Law Reform Bill, providing for ‘Liability Limitation Agreements‘. The big new auditors’ liability case discussed is MAN Nuzfahrzeuge AG v Freightliner Ltd [2007] EWCA Civ 910, a decision of the Court of Appeal upholding the decision at first instance ([2005] EWHC 2347). They assert the following elements are required in England before an auditor will owe a duty of care to a third party:

‘i)      the loss must be foreseeable;

ii)    there must be a relationship of considerable proximity;

iii)   it must be fair, just and reasonable in all the circumstances to impose a duty of care;

iv)   the auditor must be expressly made aware of the third party’s likely reliance on the accounts for the particular purpose; and

v)    the auditor should have intended that the third party rely on the accounts for that purpose; absent intention an auditor may still, viewed objectively, be found to have assumed responsibly to a third party.’

And there is a discussion of a new English Court of Appeal decision about architects’ duties to subsequent purchasers of buildings they design, Pearson Education Limited v. Charter Partnership Limited [2007] EWCA Civ 130, and of an earlier case raising similar issues, Baxall v. Sheard Walshaw Partnership [2002] BLR 100 (CA).

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Full Federal Court explains its Rules’ wasted costs jurisdiction

In Macteldir Pty Limited v Roskov [2007] FCAFC 49, the subject of the last post but one, the Full Federal Court explained the ambit of Order 62 rule 9 of the Federal Court Rules (which is reproduced in the previous post):

‘The Relevant Principles
[56] The parties generally accepted as correct the statements of principle found in Levick v Commissioner of Taxation (2000) 102 FCR 155 at [43] and [44]. Thus, in a claim under O 62 r 9, it is necessary for a client to demonstrate a serious dereliction of duty by the legal practitioner or a failure on the part of the legal practitioner to fulfil a duty owed to the Court to aid in promoting, in the practitioner’s own sphere, the cause of justice. It will often be difficult for a court to know all of the details and circumstances of a legal practitioner’s instructions. Further, the Court must be concerned about the risk of a practice developing whereby legal practitioners endeavour to brow beat their opponents into aban-doning clients, or particular issues or arguments, for fear of a personal costs order being made. Continue reading “Full Federal Court explains its Rules’ wasted costs jurisdiction”

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Unrepresented barristers’ entitlement to costs in cases involving them personally

In Winn v GHB [2007] VSC 360, a barrister was personally a party in some litigation. She was admitted in Victoria but at the relevant time was practising in Brisbane under a Queensland practising certificate. She taxed her solicitors’ fees, and acted for herself. She appealed successfully from the order of the Taxing Master. She successfully sought an order for costs, but the only costs she was entitled to were costs of travelling to and from Victoria from Queensland for the hearings because the exception to the rule that unrepresented litigants are not entitled to costs except for out of pocket expenses applies only to solicitors and does not extend to barristers. Continue reading “Unrepresented barristers’ entitlement to costs in cases involving them personally”

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Advocates’ immunity and the wasted costs jurisdiction

In Macteldir Pty Limited v Roskov [2007] FCAFC 49, my old firm Middletons convinced a unanimous Full Federal Court to pronounce sternly that advocates’ immunity may not be circumvented by a client seeking to invoke the wasted costs jurisdiction of the Court against its own former lawyers, and to re-emphasise emphatically that the wasted costs jurisdiction is only to be exercised in the case of something akin to abuse of process, and certainly not merely negligent conduct.

The plaintiff sued its former solicitors and counsel, asking for an order that it did not have to pay its lawyers’ fees and that the lawyers pay the client some of the costs the client was ordered to pay the other side in the proceedings. In this post I suggest by way of additional note that the High Court has pronounced emphatically that lawyers are immune from suits which claim ‘wasted costs’, that is, a claim that the client incurred unnecessary expense by taking an unnecessary step, or that a costs order was made against the client in favour of the other side as a result of poor advocacy. Anyone have a contrary view? Continue reading “Advocates’ immunity and the wasted costs jurisdiction”

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50,000 page loads

This blog is published with WordPress. While I was watching the waves in Bali, WordPress’s page view counter clicked over 50,000. You looked at this thing on average 225 times a day.  If you want a blog of the same design calibre as this one, let me know, and I’ll put you onto a bloke who will do all the tweaking you need and tell you how to use it. After that, your grandpa could create a blog just like this one. Australia needs more lawyer bloggers.

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In Bali

Update, 4 October 2008: Here’s an excellent article on Bali’s resurgent tourism and the environmental challenges it is posing, by The Age‘s Indonesia correspondent, Mark Forbes.

Original post: This barrister is in Bali. So no new posts until the fury of deadlines which will unleash itself on me again on my return on 19 September 2007 abates sufficiently. Sorry about that. I took this photo in the early morning looking into the Sayan Valley near Ubud, in which is to be found what is considered to be one of the world’s best hotels but which is in fact a dreadful place with a great view, with all the charm of a super-luxury voluntary prison camp.

Choice is over-rated. Sometimes it’s good to be told what to do. Here’s how to have a good time in Bali: Continue reading “In Bali”

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Tariff up for not responding to demand for information by Bureau de Spank

In Legal Services Commissioner v MG [2007] VCAT 1491, the lawyer failed to respond to letters demanding a written response to a complaint by another lawyer. The Commissioner wrote on 18 January 2007, 16 February 2007, 23 March 2007 and 1 April 2007. In other words, a complaint, quite possibly lodged last year, has languished uninvestigated for 8 months. The lawyer proffered no explanation for his breaches of the Act, so that Member Butcher decided, quite appropriately, that this persistent silence by the lawyer amounted to professional misconduct rather than unsatisfactory professional conduct. Though the dichotomy between wilful and innocent breaches of the Act which used to distinguish unsatisfactory conduct from misconduct under the old Act has been dispensed with, Mr Butcher still found those concepts of assistance in deciding whether this was the lesser or the more serious of the two conduct offences.

The fine was $1,500 and the costs $2,500. In the period to the end of the financial year before the one just gone, the going tariff seemed to be $500 and $1,000 in costs, as I noted in an earlier post.

MG gets the prize for first misconduct ‘conviction’ under the Legal Profession Act, 2004 (so far as I know), but not the first ‘conviction’; another solicitor was convicted of unsatisfactory conduct on a similar charge a week or two ago.

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Federal Court Dishes Out Some Serious Proportionate Liability Interpretation

Melbourne’s Justice Middleton has dished out some serious interpretation of the Victorian and federal proportionate liability regimes and, what’s even more useful, their interrelationship, in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216, a decision at an early stage of the proceedings. It is a classy judgment in a matter right up Justice Middleton’s alley; before going to the bench, his Honour led a team of lawyers in Victoria’s biggest pure economic loss case.

The only relevant ratio decidendi is that Part IVAA of the Wrongs Act, 1958 (Victoria’s proportionate liability regime) cannot apply to causes of action under federal statutes which evince an intention not to allow apportionment. It is not that the Commonwealth statute prevails by operation of s. 109 of the Constitution over the state statute, the Commonwealth statute covering the field. Rather, the reason is that state Acts do not apply in courts exercising federal jurisdiction (such as the Federal Court in this case) unless s. 79 of the Judiciary Act, 1903 (Cth.) applies, and it only applies unless a Commonwealth Act otherwise provides. Drawing on the High Court case which said there can be no defence of contributory negligence against a claim for misleading or deceptive conduct under s. 52 of the Trade Practices Act, 1974, his Honour concluded that the relevant parts of the ASIC Act, 2001 and the Corporations Act, 2001 did ‘otherwise provide’.

Interesting dicta about the Victorian proportionate liability regime (relevant provisions here) includes:

  • there is a question whether only state statutes are intended to be referred to in the definition of apportionable claim in the Wrongs Act, 1958, which says ‘a claim for economic loss … in an action for damages (whether in tort, in contract, under statute or otherwise) arising out of a failure to take reasonable care’ (at [27]);
  • ‘The provisions do not require that the claim itself be a claim in negligence or for a breach of duty — it [sic.] only requires that the claim arise from a failure to take reasonable care’ (at [29]);
  • a defendant seeking to apportion blame against a concurrent wrongdoer must plead out the basis for asserting that the concurrent wrongdoer is liable to the plaintiff (at [31]);
  • each concurrent wrongdoer must have a legal liability to the plaintiff (at [40]);
  • preliminary discovery might be had under the Federal Court correlate of Order 32.05 of the Supreme Court Rules against a person to ascertain whether they are a concurrent wrongdoer against whom apportionment might be claimed (at [42]). Continue reading “Federal Court Dishes Out Some Serious Proportionate Liability Interpretation”
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Justice Hollingworth unpicks the proportionate liability provisions

In Woods v De Gabriele [2007] VSC 177, Justice Hollingworth has tentatively unpicked some difficult parts of the federal and Victorian proportionate liability provisions in Part IVAA of the Wrongs Act, 1958 (the relevant provisions are here), and in the Corporations Act, 2001 (Cth) and Australian Securities and Investments Act, 2001 (Cth) Division 2, Subdivision GA. Her Honour held that the rule requiring leave of the Court before commencing proceedings against insolvent companies was no barrier to joining an insolvent concurrent wrongdoer under the Wrongs Act, 1958, and suggested the possibility that:

  • if a claim is apportionable (for example because it could have been pleaded as a common and garden variety misleading or deceptive conduct claim under the Fair Trading Act, 1999), it may remain apportionable even if the plaintiff pursues some other cause of action in an attempt to avoid the proportionate liability regime;
  • in the case of alternative causes of action pleaded in support of a claim for compensation for the same loss and damage, some apportionable and some not, all of the claims ought to be bundled up for the purposes of apportionment of that loss and damage, and treated as one apportionable claim; and
  • it is appropriate, on a defendant’s application, to join an alleged concurrent wrongdoer as a defendant rather than a third party even if the plaintiff opposes the joinder. Continue reading “Justice Hollingworth unpicks the proportionate liability provisions”