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 …

Judge says finality has overtaken intimate connection as immunity touchstone

A New South Wales District Court judge has handed down an important decision on advocates’ immunity, which is under appeal. The case is Fowler v La Fontaine [2007] NSWDC 207. It is a case which explores what the test for the immunity really is now that the High Court has said ‘it’s all about finality’. …

2nd edition of Professional Liability in Australia reviewed

I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first …

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 …

Updates: big words, Texan legal writing, conflicts of duties

In my post “Judge uses big word”, I commented on President Mason’s use of “tergiversation”. Now David Starkoff at Inchoate has noted another’s analysis of the odds of each of the High Court judges other than Justice Kirby being responsible for the appearance of “epexegetical” (which seems to mean “explanatory in a way supplementary to …

Mega firm escapes liability for clear negligence in limitations decision

Winnote Pty Ltd v Page [2006] NSWCA 287 is not only a case about digging up peat for profit but a learned essay on the application of that simple little rule that you can’t sue your lawyer more than 6 years after your cause of action against him accrued. Victorian soils yield difficult legal questions: …

Leave granted retrospectively to file charge out of time against barrister for 1999 conduct

New South Wales Bar Association v LI (No 2) [2006] NSWADT 263 Some of the allegedly agro behaviour of a now-78-year-old barrister at an arbitration which commenced on 19 December 1999 was not appreciated and resulted in a disciplinary complaint in May 2000. In mid-2003, a charge was finally laid by the NSW Bar Association. …

Winner gets indemnity costs but recovers less when loser proves winner’s costs agreement with his solicitors void

Casey v Quabba [2006] QCA 187 As reported in Lawyers Weekly, the Queensland Court of Appeal said the trial judge should have allowed the unsuccessful party in litigation to call for and challenge the validity of the successful party’s costs agreement with his solicitor in a party-party taxation of costs on an indemnity basis. Further, …

Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301. Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J) Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter …

Justice Gillard gives the Law Institute a bloody belting

SPB v Law Institute of Victoria [2005] VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c) Solicitors who read the back pages of the RPA News (dubbed the “sports pages”) well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public …