The Australian Professional Liability Blog
Stephen Warne on professional negligence, regulation and discipline around the world
The Supreme Court of NSW recently delivered a giant decision about a solicitor’s costs agreement and a fight over the right to possession of the solicitor’s file. Acting Justice Debelle’s reasons in PM Sulcs & Associates Pty Ltd v Oliveri [2009] NSWSC 456 exceed 33,333 words. Ultimately, his Honour found there was no costs agreements, with …
Even though I can remember little about them, I know that two of my favourite books are the 18 year old Francoise Sagan’s Bonjour Tristesse and Helen Garner’s The Children’s Bach. They are both short. A book is a good book when you can finish it in one bath. Entertaining as Justice Owen’s judgment writing …
Continue reading “Inferences arising from failure to call a witness for fear of what they would say”
In Legal Practitioners Complaints Committee and MT QC [2009] WASAT 42, Judge Eckert’s 3 member tribunal considered the application of the rule in Jones v Dunkel to disciplinary prosecutions in tribunals (like VCAT) which are not bound by the rules of evidence. The practitioner sought to have inferences drawn against the prosecutor from the fact …
Ever since Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1, the solicitor’s penumbral duty of care, orthodoxy since Hawkins v Clayton (1988) 164 CLR 539, has been looking shaky. The reference to the penumbral duty of care is a reference to the proposition that lawyers may owe duties in tort to take …
Continue reading “More on the solicitor’s ‘penumbral’ duty of care (or lack of it)”
When I found the Royal Australian Society of Professional Discipline (which will have a nice little commission going to whichever dominatrix is willing to pay the most for referrals of callers with the wrong idea), I will open it in the hinterland of the Gold Coast. That’s a nicer place to be than the Coast …
When you are preparing witnesses for trial — expert and lay witnesses, party and non-party witnesses alike — you should bear in mind that the other side’s barrister can call for all documents which the witness has used to refresh their memory, whether or not they are privileged. Even the client’s proof of evidence, a …
Continue reading “How the other side’s barrister can see your witness’s proof of evidence”
Part I is here. This part II is about a unanimous decision of the NSW Court of Appeal, Kowalczuk v Accom Finance [2008] NSWCA 343. Their honours followed a decision of the Full Court of the Federal Court in Shahid v Australian College of Dermatologists [2008] FCAFC 72; (2008) 168 FCR 46 at [181] which …
Continue reading “Latest on whether solicitors engage in trade or commerce: Part II”
In Zhang v VP302 SPV [2009] NSWSC 73, a solicitor negotiated a contract for the purchase of property by his clients. The vendor’s solicitor sent a draft contract. The purchasers’ solicitor went through it with his clients. They specified changes they required. The purchasers’ solicitor put the changes to the vendor’s solicitor. The vendor’s solicitor …
Continue reading “Solicitor’s ostensible authority to contract on behalf of client”
This is a note about a decision by a judge who is only a year older than me, Justice Nye Perram, a novel and somewhat unsettling circumstance: Collard v Australian Securities & Investments Commission (No. 3) [2008] FCA 1681. I looked him up because the judgment is so beautifully written, and found a welcome in …
Continue reading “Review of decisions to exclude lawyers from ASIC and NCA examinations”
The Bell Group litigation was a big one. Richard Ackland reports on Justice Owen’s attempts to make more enjoyable the process of writing judgment in a matter the trial of which went for 400 days over 3 years. You will be relieved to know that I have not read The Bell Group Ltd (in liq) …
My memory of Enid Campbell’s lectures on William Blackstone was a bit hazy, so David Pannick’s article about him in The Times (‘A sour, morose and imperious judge of the common law’) was welcome. Until I pulled this picture off Wikipedia, I had no idea the famous author was in fact a hare. He was …
Update, 4 May 2009: For an example of these principles in operation in a professional negligence case in which proportionate liability was given effect to (I posted about the main decision here), see Sali v Metzke & Allen (No. 2) [2009] VSC 169, where the successful plaintiff’s costs were reduced by 30% because they raised …
Ms Garde-Wilson’s back in business. In fact she never went out of business, since following the non-renewal of her practising certificate, she held a deemed practising certificate pursuant to the Legal Profession Act, 2004, s. 2.4.5(3) pending her VCAT merits review application. The assertion that she had ceased to be a fit and proper person …
In Stanoevski v Council of the Law Society of NSW [2008] NSWCA 93, Justice of Appeal Campbell, with whom Justice of Appeal Hodgson and Acting Justice of Appeal Handley agreed, has provided important guidance on who bears which burdens of proof in cases where a legal regulator seeks to cancel a practising certificate or have …
Update, 23 January 2009: See also Reading Entertainment Australia Pty Ltd v Burstone Victoria Pty Ltd (No 2) [2005] VSC 137, Reading Entertainment Australia Pty Ltd v Whitehorse Property Group Pty Ltd [2007] VSCA 309Irani v St. George Bank Limited [2005] VSC 456; Abigroup Ltd v Sandtara Pty Ltd [2002] NSWCA 45. Original post: National …
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 …
Continue reading “Both sides apply to restrain the other’s lawyers from acting”
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 …
Here’s a 37,000 word long judgment in a professional negligence case against a solicitor which began in early 2000: Rebenta Pty Ltd v Wise [2007] NSWSC 1332. It does not discuss many issues of law. The reason one might want to look at it is that it is one of those rare cases where a …
Here’s a decision from the NSW Court of Appeal, apparently exercising original jurisdiction, in which a former partner of Marsdens in Campbellfield was struck off the roll by consent for receiving secret commissions of $180,000 amongst other things, including deceiving the investigation into that conduct: Prothonotary of the Supreme Court of NSW v Alcorn [2007] …
Continue reading “Former Marsdens partner struck off the roll of solicitors in NSW”
About a week ago, I posted about Mr Milan Tomasevic and how Justice Bell thought the judge below had not been solicitous enough to him. A reader of this blog has filled me in on Mr Tomasevic’s form. One of his early cases, Zegarac v Tomasevic [2003] VSC 150, was a Part IX adjustment of …