Excess of definacronymisation (”EOD”)

Lord Justice Mummery’s judgment referred to in the previous post is admirably short at 34 paragraphs (and the other two judges agreed — very un-Australian) but it it is an exemplar of the worst excesses of EOD, an excrescence on legal writing which achieves precisely the opposite (confusion) of that which it has an air of promoting (clarity). If I were the Lord Chancellor, I would direct that no pleading, affidavit, or judgment contain any TLAs. Or FLAs for that matter. Definitions in legal writing are out of control. I would also direct that any defined term which is not again used in a document render its draftsman liable to a fine payable to charity, and that a lesser fine apply to any definition which the man on the Clapham omnibus would consider reasonably unnecessary. I would task the recipient charities with enforcement and suggest they develop a robotic text crawler which would search the online annals of legal writing for the work of those who feel it necessary to define, say, Ladro Pizza Pty Ltd as “Ladro Pizza” where there is no sense of “Ladro Pizza” which could be confused with the sense of it as the shortening of the name of the company (as would be the case if that company owned the ridiculously popular Fitzroy pizzeria named “Ladro”). Consider this abomination of legal writing from Lord Justice Mummery’s judgment: Continue reading “Excess of definacronymisation (”EOD”)”

UK okays lawyers attacking former client’s honesty across a Chinese wall

The little guy in the centre is Lord Justice Mummery of the English Court of Appeal, an Oxford man shown here awarding some trophies at Oxford. He wrote the lead judgment in Gus Consulting GMBH v LeBoeuf Lamb Greeme & Macrae [2006] EWCA 683 handed down in late May. The American law firm against which the injunction was sought wheeled out Lord Neill of Blanden QC, a former judge, Vice-Chancellor of Oxford, Chairman of the Bar Council, Chairman of the Senate of the Inns of Court, Chairman of the Press Council, director of The Times, legal adviser to the Synod of the Church of England, and Chairman of the Committee of Enquiry into Regulatory Arrangements at Lloyds. About as English as a pork pie, and a one-time member of the Committee on Standards in Public Life to boot. He got a difficult argument across the line.

A law firm discovered that it was acting in a dispute “which involve[d] a consideration of work they themselves did for those clients [7 to 8 years previously] and an attack on the honesty and integrity of their former clients in those very transactions”. Worse, the conflict had been missed when the lawyers who were mounting the attack on the former client joined the firm, bringing the new client with them. But until the conflict was noticed, the month after the lawyers’ move, the new members of the firm had been oblivious to the work previously done by it for the people they were now attacking, and steps were quickly put in place to prevent any access to the former client’s files. The Court refused an injunction sought by the former client enjoining the firm from acting against it, finding the Chinese wall to be efficacious. This is a case which falls squarely within what is governed by the Victorian Court of Appeal’s duty of loyalty to former clients: the taking up of cudgels against a former client in relation to the same or a related matter.

Having read many conflict cases, I strongly suspect cases involving mergers result in injunctions much more rarely than others. Furthermore, the fact that the injunction would have resulted in the loss to the new client of a legal team which had obviously been engaged for 3 years in a complicated dispute must have been a matter of great influence, though it is an entirely hidden factor in the reasons.

So the former client cannot enjoin its former lawyers from taking up the cudgels against it in a related matter. But what is to stop the new client of the firm from suing it for breach of the duty of disclosure (which is the duty which conflicts with the duty to keep the former client’s information confidential in these kinds of cases) when it fails to disclose that which it has undertaken to the Court not to disclose though it is relevant and “goes to the heart of” a key issue in the arbitration?

Continue reading “UK okays lawyers attacking former client’s honesty across a Chinese wall”

Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction

It has to be said that De Sarro’s Case [2006] VCAT 1924 is about as boring as they come, a costs dispute about whether a quote of $400 plus GST was for the whole conveyance or only for preparation of the vendor’s statement. Apart, that is, from the unusual feature that Ms De Sarro apparently went through the Professional Standards costs dispute process, got her permission to refer the matter to VCAT, but then decided to proceed to VCAT not on the basis set out in her permission letter under s. 128 of the Legal Practice Act, 1996 (or its correlate in the Legal Profession Act, 2004) but by instituting a proceeding in VCAT’s civil jurisdiction under the Fair Trading Act, 1999.

The solicitor won this contest on the facts, and it seems no one raised the question of whether the solicitor’s services were prepared in trade or commerce.

It seems from the catchphrases noted in Austlii, that the application was pursuant to s. 108 of the Fair Trading Act, 1999. That says VCAT may hear and determine a “consumer-trader dispute”, defined to include a claim in negligence arising between a purchaser (being the person to whom the services are supplied) and a supplier of services, including the performance in trade or commerce of work of a professional nature. VCAT’s powers include ordering in-house mediation, ordering compensation, exemplary damages and interest, ordering payments by way of restitution, rescinding, rewriting, rectifying, or declaring void contracts or terms of contracts, granting injunctions, and ordering specific performance. Continue reading “Unrepresented woman jumps off Legal Practice Act conveyor belt into Fair Trading Act jurisdiction”

Soli sends home-made porno to ex-girlfriend’s work and loses ticket

In Legal Practitioners Complaints Committtee v MMT [2006] WASC 211, the Full Court of the Supreme Court of Western Australia struck a 37 year old solicitor (with a Masters in psychology) off the role of practitioners for stalking his ex-girlfriend, another solicitor. In fact he sent her boss a video of him and the victim having sex in happier times. He pleaded guilty in the criminal court and received a suspended 9 month jail sentence. He admitted the allegations against him before the disciplinary tribunal, which found unsatisfactory conduct, the only disciplinary offence in WA, to be made out. The tribunal suspended him from practice. The Tribunal referred its reasons for decision to the Supreme Court. The plaintiff applied successfully for the solicitor to be struck off the roll. Though the solicitor attributed his actions to depression occasioned by the breakup of his relationship with the victim, he had not sought enough psychological assistance for the Court’s liking, and had not been found by the disciplinary tribunal to be genuinely remorseful. He had ceased practising as a lawyer and moved 4 hours away from Perth, where the offences occurred, though. The conduct he engaged in was as follows:

Continue reading “Soli sends home-made porno to ex-girlfriend’s work and loses ticket”

Depressed partner who stole $275,000 gets suspended sentence

R v G*rant [2006] VSC 235
A property lawyer who was a partner in a two partner, 3 office firm, became depressed and failed to lodge tax returns for 9 years. When the ATO cracked down on lawyers, he lodged the returns late, and became liable for about $200,000 in tax, interest, and penalties.

He stole from his clients’ monies he held in trust. He forged documents. He mortgaged his elderly parents’ unit without their knowledge in a flagrant breach of their trust. He paid the proceeds to the ATO. The Law Institute commenced an audit of his trust account following a complaint. Shortly afterwards, he made a very serious attempt at suicide which was averted only through his wife’s intuition. He voluntarily surrendered his practising certificate. He confessed everthing to the Law Institute, and was genuinely contrite. He had given up the law and found a job as a telemarketer.

A year after voluntarily surrendering it, VCAT suspended his practising certificate for 5 years and ordered that he apply thereafter only for an employee’s practising certificate for a further 5 years. That was in March. At some stage, the Fidelity Fund paid back the clients. To the criminal charges, he pleaded guilty. Strong pyschiatric evidence of very profound clinical depression was adduced. The sentencing judge accepted the solicitor’s genuine intention eventually to repay the whole amount paid out by the Fidelity Fund. The solicitor’s counsel, Lex Lasry QC instructed by Rob Stary & Associates, successfully submitted that the sentence — 3 years’ imprisonment — should be wholely suspended: because the need for specific deterrence was nil, because of the early guilty plea and full cooperation, because of the remorse and genuine intention to repay the Fidelity Fund, and because a person with a serious mental illness is not an appropriate vehicle for general deterrence. As to the legal principles involved, Habersberger J said: Continue reading “Depressed partner who stole $275,000 gets suspended sentence”

Melbourne solicitor charged with contempt

As reported in the Sunday Age, a Melbourne solicitor successfully sued four policemen who bashed his client and broke her jaw (see the photo in the article, and, to balance the books, see the mobile phone footage of youths bashing police here). According to The Age, the story begins, like this:

“two police officers … stopped Ms Horvath, then 21, and her partner, Craig Love, and declared her car unroadworthy. Believing the couple were ignoring the roadworthy sticker, the next day the officers illegally entered their Somerville home. Knowing they did not have a warrant, Ms Horvath ordered them off her property. The officers called for reinforcements. When six others arrived a decision was made to raid the house, breaking down the door if necessary, and arrest Ms Horvath and Mr Love”. Continue reading “Melbourne solicitor charged with contempt”

Bankrupt once-struck-off barro described as “shoddy” wins $101,008

In MK v John Fairfax Publications Pty Ltd [2006] NSWSC 758, the Sydney Morning Herald was ordered to pay $100,000 in damages for defamation to a barrister about whom it published a sneering error-riddled excoriation. Just shows that you should not kick a barrister when he’s down. [Update: in April, the NSW Court of Appeal overturned the decision and ordered a new trial on the basis that the trial judge exhibited ostensible bias against the newspaper, and should have recused himself on the defendant’s application: John Fairfax Publications Pty Ltd v Maurice Kriss [2007] NSWCA 79.] The article included the passage: Continue reading “Bankrupt once-struck-off barro described as “shoddy” wins $101,008″

Costs orders against solicitors

Russell Cocks, a man with a keen interest in legal ethics, and a penchant for cartoon ties, wrote an article in the Law Institute’s Litigation Section Newsletter on costs orders against solicitors in Victoria. It is always difficult to maintain an understanding in this area because the cases seem inconsistent, and are all based on different legislative regimes which themselves keep changing. So an up to the minute analysis is a handy thing. Continue reading “Costs orders against solicitors”

Supreme Court authority on setting aside costs agreements

Update, 21 April 2008: see the decision on appeal: McNamara Business and Property Law v Kasmeridis [2007] SASC 90.

Original post: Kesmeridis v McNamara Business and Property Law [2006] SASC 200 is a decision of a Master of the Supreme Court of South Australia. Decisions in such applications in Victoria are heard by the members of VCAT’s Legal Practice List. The decision, and several related decisions, (i) say that a costs agreement reduced in writing need not be signed by both parties to be a contract in writing as required by the relevant statute, (ii) say that whether a costs agreement is “fair and reasonable” is to be determined by reference to pre-contract conduct, (iii) say that a discretion to charge a premium over and above an hourly rate is easily severable from a costs agreement and does not require the whole agreement to be set aside, and (iv) demonstrate that the courts’ distrust of hourly rate costs agreements is not waning with time.

Though the clients had been defendants in 35 proceedings before the relevant retainer and so “were not as ignorant of the legal system as they might have claimed”, the costs agreement was set aside in part because the solicitors had not explained to their prospective clients that there were other solicitors in Adelaide who would have been willing to do the same work on scale. Continue reading “Supreme Court authority on setting aside costs agreements”

Late term abortion saga ends

The Australian reports on the Victorian Medical Practitioners Board‘s finding in favour of the 5 doctors allegedly involved in a late term abortion at the Royal Women’s Hospital which upset Coalition MP Julian McGauran. He exercised the right open to everyone to complain about the conduct of a doctor, and the Medical Board was obliged to investigate unless it found the complaint to be frivolous or vexatious, but the saga has prompted change: in future, the Board can decline to investigate on the basis that the complaint is misconceived, lacking in substance or “does not warrant investigation”.

The Supreme Court’s decision (Royal Women’s Hospital v Medical Practitioners Board of Victoria [2005] VSC 225) and Court of Appeal’s decisions ([2006] VSCA 85) are leading authorities about public interest immunity, which the Court of Appeal held provided no basis to withhold confidential patient records.

Litigation funding in the news

An article in The Age examines the financial viability of John Walker’s publicly listed litigation funder, IMF. Its share price has varied from 40c to $1.90 in recent times. It is funding 60 cases with a maximum claim value of $1 billion. Walker employs a “17-member team, which includes a clutch of lawyers, debt collectors and former investigators from the Australian Securities and Investments Commission and the fraud squad.”
An article in Lawyers’ Weekly provides a happily brief overview more or less accessible to the lay reader.
The High Court recently gave the thumbs up to litigation funding recently in Campbells Cash and Carry Pty Limited v Fostif Pty Limited [2006] HCA 41.

The transcript and audio for ABC Radio National’s Law Report on the decision begins with the aphorism “Justice is open to all, just like the Ritz Hotel”.

No obligation to obey VCAT order invalid for exceeding jurisdiction

In The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146, the subject of the two previous posts, the Court of Appeal declared that there is no obligation to obey an unlawful order of VCAT before setting it aside. (That is one of the differences between a superior court and a Tribunal, since an order of a Superior Court must be obeyed unless set aside, even if made without jurisdiction.) The newspaper had gone ahead and published the terms of settlement in apparent contravention of the injunction of VCAT’s President Justice Morris that it not do so. Unsurprisingly, it led to a contempt proceeding. The Court of Appeal found there was no contempt because the injunction was a nullity. Continue reading “No obligation to obey VCAT order invalid for exceeding jurisdiction”

Court of Appeal reads down VCAT’s jurisdiction to make orders in matters related to proceedings within its jurisdiction

In The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146, the facts of which are described in the previous post, VCAT’s Presdient Justice Morris, having found that the principle of functus officio was not an impediment to him reinstating the relevant proceeding and making further orders, purported to join the newspaper as a party and enjoined it from publishing the details of the terms of settlement lawfully procured by its journalist’s search of VCAT’s file. He found that to publish the details of the expressly confidential settlement would be a breach of an equitable duty of confidentiality. The newspaper said that his Honour had no jurisdiction to make an order against someone who was a stranger to the proceeding but for the reinstatement of the proceeding and the addition of them as a party in order to provide a vehicle by which to make the order.  The Court of Appeal agreed. Continue reading “Court of Appeal reads down VCAT’s jurisdiction to make orders in matters related to proceedings within its jurisdiction”

Court of Appeal rules on VCAT’s implied jurisdiction to reinstate struck-out proceedings

Justices Chernov, Nettle and Ahley JJA handed down the Victorian Court of Appeal’s judgment in The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146 on 7 July 2006, one of the 1 in 1000 decisions of VCAT which are appealed (according to a speech made by its President). They found that VCAT’s power to  override by direction the basic principle that VCAT files are able to be inspected by the public meant that VCAT had an implied power to reinstate proceedings for the purpose of  exercising that power in proceedings which were otherwise long disposed of. Continue reading “Court of Appeal rules on VCAT’s implied jurisdiction to reinstate struck-out proceedings”

New Zealand ditches advocates’ immunity; Scotland confirms it

It took New Zealand’s new ultimate appellate court a long time to hear Chamberlains v Lai [2006] NZSC 70 and make a decision, but after a long think, its judges have decided to give advocates’ immunity the boot. Advocates’ immunity, otherwise sometimes known as “barristers’ immunity” or “forensic immunity”, applies equally to solicitors involved in litigation as to barristers involved in litigation. It is an immunity from being sued for negligence or anything else for work in court or work intimately connected with such work in court, and is based on the public policy that the umpire’s decision is final.

Many will be the analyses of how Australia is alone in the civilised world in retaining the immunity (though they will be wrong, because Scotland recently followed Australia’s lead and thumbed their noses at the House of Lords: see below). But what needs to be analysed is whether as a practical matter, clients can successfully sue barristers in any particular place, whatever the name of the impediment to doing so is. A right to sue which gives rise to an unsuccessful suit is a right to make a very poor investment of a lot of legal fees. The law in places which profess not to recognise the immunity is less different than we might imagine from the law in places which do profess to do so. The more I know about the law, the more interested I am in analyses of facts against results, ignoring the legal language interposed between them.

Meanwhile, the Inner House of Scotland’s Court of Session declined an invitation to abolish the immunity in criminal cases in Wright v Paton Farrell [2006] SLT 269, showing uncharacteristic restraint in this curious corner of jurisprudence by not commenting on civil cases.

No term implied into retainer to comply with the Legal Practice Act, 1996

I have always been curious about the extent to which a term might be implied into a retainer giving contractual force to the rules of conduct whether found in rules of the Law Institute or found in the regulatory Acts.

In Equuscorp Pty Ltd v Wilmoth Field Warne (No 3) [2004] VSC 164, Byrne J said at [101] that it was not open to the plaintiff to contend that a breach of s. 174 of the Legal Practice Act, 1996, which governed the withdrawal of moneys from solicitors’ trust accounts, constituted a breach of an implied contractual term in a particular retainer to comply with the Act.

He suggested, in the same paragraph, that a party who wishes to rely on the solicitors’ professional conduct rules ought to adduce them into evidence.