Posted on

Courts must do the best they can to quantify loss even where the evidence is less than ideal

It is not a new proposition, but it is often glossed over by defendants, just like the thoroughly orthodox proposition that legal causation does not require that a wrong be the sole, predominant, or proximate cause of the damage.  The proposition is that where the court is satisfied that a wrong has caused actual loss of some sort, difficulties in working out what the value of the loss is in money terms cannot defeat the remedy of damages.  The judge must do the best he or she can, even if the evidence is sparse and unsatisfactory.

In a rather wonderful case about the negligent destruction by an RSPCA officer of a herd of cattle which went for 12 years and 68 days of trial, the Court of Appeal has pithily restated the proposition in reasons for dismissing RSPCA’s application for leave to appeal.  The judgment is RSPCA (Victoria) v Holdsworth [2015] VSCA 243.  Subject to further appeal, it looks like the RSPCA or its insurer will have to cough up the judgment of more than one million dollars.  Costs don’t bear thinking about.

The relevant part of the proposed appeal was from a finding of Judge Bowman that had the RSPCA not slaughtered the animals, their owners would have set up a business of selling the bulls’  semen and made a profit from it.  The RSPCA said this was ‘pie in the sky’ and there was no credible evidence that this was in fact the plan or that it could have succeeded.  Certainly, no attempt had been made to set up the business before the RSPA’s lethal destruction of the unarmed furry animals.

The Chief Justice and Justices of Appeal Hansen and Beach said: Continue reading “Courts must do the best they can to quantify loss even where the evidence is less than ideal”

Posted on

Wilson Security Guard says Wilson Security was waterboarding refugees on Nauru

I expressed my disgust in this post that the CIA set up secret dungeons in, for example, the outskirts of Bangkok, and then tortured people to death in joint ventures with dictators, lied about it, liaised with Hollywood in the making of a propaganda movie suggesting (falsely) that Bin Laden’s extra-judicial execution was possible only because of intelligence tortured out of people, and then determinedly undermined the US Senate’s Select Committee on Intelligence investigation, the great majority of whose report remains censored.

There was an excellent ‘4 Corners’ last week about America’s torture programme, which all lawyers in Australia should watch (it’s available here for a limited time).  It features extensive interviews with the CIA’s lawyer John Rizzo, who travelled to several of these illegal dungeons at the ‘black sites’ and reassured CIA operatives that the torture they were engaged in was perfectly legal.  If there is a question which it should be a cinch for any lawyer to answer otherwise than unequivocally negatively, it is ‘Is waterboarding torture?’ (The late Christopher Hitchens’s brilliant ‘Vanity Fair’ essay on the topic is here.  He tried it. But, as he pointed out in this television interview, the US already had a position on the question, having several times sought the death penalty for the waterboarding of American troops).  It also discloses the enormous amounts of money paid to two psychologists who shambolically masterminded the torture (Shame!). One also gets to see and hear the Senate Committee’s Dianne Feinstein, the Democrat and former Mayor of San Francisco (pictured) who was at the forefront of her Committee’s dogedness in uncovering the truth about the CIA’s torture, its incompetence, and its uselesness.  I was so pleased to hear that, like me, she walked out of Zero Dark Thirty during its opening torture scenes.

Now an apparently thoroughly respectable Australian named John Nicholls who used to work in the concentration camp up on Nauru has given evidence to an Australian Senate enquiry into abuses on Nauru that Wilson Security Guards employed by the government tortured refugees by waterboarding them.  Continue reading “Wilson Security Guard says Wilson Security was waterboarding refugees on Nauru”

Posted on

All-new High Court to hear advocates’ immunity appeal

The plurality judgment in the last decision of the High Court squarely about the advocates’ immunity was written by Chief Justice Gleeson and Justices Gummow, Hayne and Heydon JJ.  They have now retired from the Court.  As have the other judges who constituted the Court in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1, Justices McHugh, Kirby and Callinan.  Now, a Court constituted by a selection of the current justices (Chief Justice French and Justices Kiefel, Bell, Gageler, Keane, Nettle and Gordon) will hear an appeal from the New South Wales Court of Appeal’s decision in Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335 (trial judge’s decision here, and special leave application transcript here: the application was heard by Justices Bell, Gageler and Gordon, and the appellant’s counsel was R. D. Newell), and the appeal seems set to be heard in November.  Lawyers allegedly negligently settled litigation, were sued for damages, and successfully invoked advocates’ immunity.

I have been thinking about these questions for a long time and many times as a lawyer representing solicitors and barristers, called on the immunity successfully.  I published the concisely titled ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ in 2002 at 10 Torts Law Journal 167 and would be happy to provide a copy upon request.  I was also in the High Court for argument of D’Orta-Ekenaike’s Case as one of the barrister respondent’s instructing solicitors.  I might even pop up to Canberra to watch the argument in this latest case.

It was third time lucky for a leave application in this kind of case, after the Court declined special leave in Young v Hones [2015] HCASL 73 (6 May 2015, Bell and Gageler JJ) and Nikolidis v Satouris [2015] HCASL 117 (4 August 2015, Nettle and Gordon JJ (‘Given the procedural history of those initial proceedings, including that the applicants agreed to settle those proceedings, the present case does not provide an appropriate vehicle for reconsidering [the immunity]’).

In the Court of Appeal, Chief Justice Bathurst, with whom Justices of Appeal Meagher and Ward agreed, reversed the decision of Harrison J.  The trial judge was quite frank: he said in a cri de cœur which met with little sympathy on appeal:

‘Notwithstanding all of the above, there remain at least two related matters that in my opinion are particularly troubling in this case, and which directly intersect with the way in which I am able to dispose of this application. The first matter is the apparent or potential strength of the plaintiffs’ allegations that the defendants have been negligent. As I have already commented, the plaintiffs would have been substantially better off if they had simply not defended the proceedings. The predicament that the judgment created for them is difficult to explain but even more difficult to understand. It is also difficult not to have a sense of unease about the possibility that an egregious error may go without the prospect of a remedy.’

Even if the immunity is not abolished, the decision has the potential to radically re-write the immunity landscape.  The other thing it will do is promote discussion of the immunity, see good people marshalling the increasingly excellent arguments in favour of its abolition, and provide the possibility (again) for legislative amendment or abolition.

What has happened since D’Orta-Ekenaike’s Case?  My (admittedly somewhat) Victorian-centric thinking suggests the following: Continue reading “All-new High Court to hear advocates’ immunity appeal”

Posted on

A case about a bipolar lawyer

My practice has had me thinking a lot recently about the professional discipline of the mentally ill.  The legal profession has caught up with the medical profession by coming up with good policies which make clear that where mental illness can be managed in such a way as to protect clients and others to whom lawyers owe duties, managed practice by the mentally ill should be encouraged and supported.  For example, see the Legal Services Board’s policy.  The Board’s CEO, the Legal Services Commissioner Michael McGarvie, has been talking about the policy in recent weeks, and so has a Federal Court judge been talking about his own long standing clinical depression.  This post looks at what might be a sad case of a mentally ill lawyer who defended himself, and got me thinking about how mental illness is treated when it emerges in the course of investigation of disciplinary complaints.

If mental illness is not relevant to the test for professional misconduct, as the Commissioner argues and at least one text asserts, I wonder whether the Commissioner should be given a discretion not to prosecute where he finds it reasonably likely that VCAT would make a finding of professional misconduct, but the practitioner does not presently hold a practising certificate and their conduct is at least in part explained by mental illness. Continue reading “A case about a bipolar lawyer”

Posted on

VCAT’s President’s extra-judicial views on Barbaro in VCAT disciplinary hearings

In my last post, I briefly surveyed VCAT’s approach to the Barbaro principle in disciplinary proceedings against solicitors.  I just came across a presentation given by the Supreme Court’s Justice Garde, VCAT’s President which touches on this issue.  The presentation is titled ‘Alternative Dispute Resolution – Can it work for Administrative Law?’. It was given on 26 February 2014, and is linked to here.  The relevant part is: Continue reading “VCAT’s President’s extra-judicial views on Barbaro in VCAT disciplinary hearings”

Posted on

Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions

The Federal Court has given a landmark decision about regulatory prosecutions.  In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed outcomes so long as they are ‘within the permissible range’ of penalties.  But nor will disciplinary prosecutors be able to submit what the appropriate penalty ought to be.  Rather, they will be limited to making submissions about the appropriate sentencing principles, and about similar outcomes in similar cases.

The powerful judgment is at odds with a paragraph of dicta in a recent decision of the Victorian Court of Appeal in that it applies the High Court’s decision in Barbaro, a criminal case, to the quasi-criminal realm.  How the case plays out in Victoria remains to be worked out, but if this case goes to the High Court (and both sides have filed special leave applications), all that may change. Certainly the settlement of proceedings by regulators just got more complicated.

There seems to be a discrepancy about fundamental norms of government between the dicta of our Court of Appeal and the ratio of the Federal Court’s decision.  Once that gets resolved, however, each piece of legislation setting up the regulatory regime must be construed against the backdrop of those fundamental norms, and might give rise to different outcomes.  The Federal Court approached the task of working out how Barbaro applies in regulatory prosecutions in an orthodox fashion, i.e. by a process of statutory construction based on a close textual analysis of the legislative scheme as a whole.

The Chief Justice of the Federal Court allocated three judges to hear a preliminary question in the regulatory prosecution at first instance, in which the parties had already agreed on a proposed outcome, the result of a settlement (or, if you will, a plea bargain).  The proceeding was brought against the CFMEU and the judgment’s aim was apparently to sort out once and for all if, and how, the High Court’s decision in Barbaro is to apply in proceedings for a penalty.  The mouthful of a case is reported as Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, but seems set to be called ‘the CFMEU Case’.

It’s quite a judgment: indignant, keen to cut cant, and argued from first principles in relation to the place of the courts in civil society.  It is a further step in the demolition of the nonsense about disciplinary proceedings being sui generis, fundamentally distinct from criminal prosecutions, and (oh, spare me!) protective and not punitive in a way which means the protection of those against whom punishment is sought need not be extended.  The   punishment of citizens is, and must be seen to be, a job for the courts (except where parliament has expressly provided otherwise); where the State is seeking to punish citizens the label applied to the proceedings is a distraction; and in such cases, the Courts having been tasked with ascertaining the appropriate penalty, they must do so conscientiously themselves, however convenient it might be for them, for regulators, and for the regulated, to cede that task to a regulator which is part of the machinery of the executive arm of government, and to pay lip service to the inquiry conducted by the Court into the appropriateness of a deal done behind closed doors.  So said the Court.

The indignation extends to the many judges and other decision makers who have convinced themselves post-Barbaro that the decision does not apply  to them, often on the basis that criminal proceedings are special and proceedings for a penalty are civil proceedings and nothing like criminal prosecutions.  Distinguishing Barbaro away has been de jour. Continue reading “Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions”

Posted on

Summary judgment in a disciplinary prosecution?

I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here.  Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS [2015] VCAT 649).  The answer, according to VCAT’s President, Justice Garde?  Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: Continue reading “Summary judgment in a disciplinary prosecution?”

Posted on

Lawchestra’s third concert: an afternoon at the opera; Robert Dora’s Symphony to an ANZAC

The Lawchestra is holding its third major concert.  To recap, we played a symphony and some other straight orchestral pieces in the first, and nailed it.  Then we played an ambitious programme centred on a beautiful performance of Rachmaninov’s second piano concerto by Natasha Lin.  Now, we’ve teamed up with the Opera Studio of Melbourne, an elite training ground for future opera stars, to bring you the entertaining bits from the vast world of opera.  Please do come (more below).  Book here or, if you have no sympathy for the organisers who need the reassurance of advance ticket sales, pay at the door.

And there’s another thing.  Our wonderful conductor, Robert Dora, has composed a symphony (‘Symphony to an ANZAC’).  One of his other orchestras gave it its world premiere the other weekend and it will be broadcast between 11 a.m. and noon on ANZAC Day on 3MBS. I’ll be listening.  You can hear a snippet here.  Performances of new symphonies composed in Melbourne are a rarity.  And this one is approachable and wonderful: tonal, brooding, Shostakovichesque Continue reading “Lawchestra’s third concert: an afternoon at the opera; Robert Dora’s Symphony to an ANZAC”

Posted on

Legal Services Commissioner seeks to overturn privilege against penalties

There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination.  It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of argument identifying in broad terms what is in issue.  And even if such an order is made, compliance will not require the foreshadowing of any evidence or the admitting or denying of any facts.

The other day, a full frontal attack by the Legal Services Commissioner on the privilege in disciplinary prosecutions of solicitors did not result in it being distinguished out of existence.  Though there was no contradictor in the hearing, the President of VCAT, Justice Greg Garde, gave the challenge short shrift in LSC v Spaulding [2015] VCAT 292.

Since practitioners started increasingly exercising their right to stay silent after the disciplinary investigation has concluded and before the conclusion of the Commissioner’s case, the Commissioner has begun increasingly to seek orders for the service of a notice to admit, despite the absence of any rule-based regime in VCAT governing the consequences of non-response to such notices.  Some practitioners have consented to such orders and VCAT has made them.  There may be grounds to review decisions in such cases where the practitioner did not ‘waive’ the privilege, since President Ross said:

‘in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit.’

Waiver as a concept in the law generally requires a high level of deliberate abandonment.  No doubt for that reason, the Commissioner began some time ago to alert practitioners to the existence of the privilege when proposing such orders.

President Garde has also made clear that the Tribunal itself has a duty ‘to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege.’

The President also observed that many professionals will wish to make admissions if for no other reason than to be seen  to be appropriately cooperative, and to attenuate the issues and so diminish the costs which will be payable if the practitioner loses.  My clients often make extensive admissions, sometimes make denials, but often remain silent in relation to some issues and strenuously resist the characterisation of such silences the matters about which they have stayed silent as ‘denials’.  There is, however, nothing to be gained from consenting to an order to provide a response to a notice to admit.  When, as I have found to be the case, the notices are framed in a manner which purports to graft onto VCAT’s procedures a presumption of admission in the event of non-denial, great procedural uncertainty is generated, because, unlike in the state courts, there are no rules of procedure which provide a legal basis to generate such an admission.  And it will often be more convenient for the practitioner to craft the admissions in the form he or she considers most appropriate, possibly in a discursive letter, and at a time convenient to him or her.  Furthermore, the notices to admit usually track the allegations in the Application itself extremely closely, regardless of the admissions made during the investigation in correspondence which is annexed to the Application, so that the requirement to respond to the notice to admit is akin to a requirement to serve a defence, and the drafting, filing and service of the notice to admit generates a substantial cost on a party-party basis.

Finally, for some reason, no one ever seeks orders to serve notices to admit on the Commissioner.  If, for some reason, one were to consent to orders for the provision of a response to a notice to admit, it would seem appropriate to me to reserve a right to reciprocity. Continue reading “Legal Services Commissioner seeks to overturn privilege against penalties”

Posted on

Suspensions which are not suspensions and orders which are not orders

VCAT’s latest decision to come to my attention, of Member Elizabeth Wentworth, involved another solicitor who did not lodge tax returns over an extended period. He was suspended from practice for 12 months, but the suspension was suspended provided he did not breach certain conditions in the three years after the orders.  If he does, then the Commissioner may apply for the suspension of the 12 month suspension to be lifted so it comes into operation. Member Wentworth decided to leave what exactly would happen in the case of a breach to the discretion of the any future Tribunal constituted to consider it rather than providing automatically for the suspension of the suspension to be lifted.  Legal Services Commissioner v GB [2015] VCAT 254 is interesting to me for six reasons: Continue reading “Suspensions which are not suspensions and orders which are not orders”

Posted on

Can a legal regulator rescind a decision to bring disciplinary proceedings

The Supreme Court of Tasmania has made an important ruling in  Legal Profession Board of Tasmania v XYZ [2014] TASSC 33 about the finality of decisions made by legal regulators at the end of disciplinary investigations.  The decision suggests that in those jurisdictions with similar statutory provisions, until a disciplinary prosecution is launched, such decisions may be less final than I suspect many lawyers in Australia have previously believed.  A decision of the Victorian Court of Appeal, which related to a different situation where one of two courses following a disciplinary investigation was gone down and completed and the professional regulator sought subsequently to go back down the alternative course, was distinguished: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301. Continue reading “Can a legal regulator rescind a decision to bring disciplinary proceedings”

Posted on

Solis who fail to tell client about settlement offer immune from suit

Kendirjian v Lepore [2014] NSWDC 66 is only a decision of the District Court of NSW, but it purports to apply law binding on the judge, namely that identified in the NSW Court of Appeal’s decision in Donnellan v Woodland [2012] NSWCA 433.

The following facts were presumed to be true for the purposes of a summary judgment application brought by the defendant solicitor exclusively by reference to advocates’ immunity.  A man was advised his claim for personal injury was worth about $1.2 million.  Personal injury proceedings were commenced. The defendant offered to settle for $600,000 plus costs.  The man’s solicitors failed to advise him of the offer and rejected it.  When the man obtained about $310,000 plus costs at trial, he sued for the difference between his position after the trial and an appeal and the position he would have been in had he been informed of the offer, which he said he would have accepted.

The Court summarily dismissed the suit.  This passage should be carefully considered, unfortunately, by any plaintiff considering suing a lawyer for negligence in litigation, especially when the law of NSW applies, and especially when it is alleged that but for the negligence, a different final or interlocutory result would have obtained: Continue reading “Solis who fail to tell client about settlement offer immune from suit”

Posted on

Can an administrative agency determine that a crime has been committed?

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, the High Court considered when an administrative agency can make a determination of the commission of a crime.  The case arises out of the sorry saga of two Today FM presenters impersonating the Queen and Prince Charles in inquiries of the hospital in which the Duchess of Cambridge was a patient.  ACMA conducted an investigation and published a preliminary report expressing the ‘view’ that Today FM had used its broadcasting service in the commission of an offence under the Surveillance Devices Act 2007 (NSW).  Commission of an offence in the course of use of a broadcasting service was a breach of the licence and carried with it the possibility of its revocation: s. 8(1)(g) Australian Communications and Media Authority Act 2005 (Cth). The Court said of ACMA’s ‘view’: No worries; full steam ahead, overturning a unanimous decision of a bench of the Full Federal Court presided over by its Chief Justice, and restoring the trial judge’s conclusions.

There are no doubt implications for Legal Services Commissioners and other disciplinary investigators where misconduct is defined to include the engaging in of criminal offences.  Under the uniform legislation to come into force in Victoria and NSW this year, Legal Services Commissioners will become decision makers and have the power to impose fines for professional misconduct.  I have blogged before about various cases in which a related question has arisen, of the appropriateness of administrative tribunals making determinations of the commission of offences, not with criminal consequences but with penal disciplinary consequences. Continue reading “Can an administrative agency determine that a crime has been committed?”

Posted on

More on the constraints on the use of information obtained under statutory powers

In Flori v Commissioner of Police [2014] QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force.  A criminal investigation was launched as a result of the findings of the disciplinary investigation.  A search warrant was granted in aid of the criminal investigation, and executed.  The sergeant’s computers were seized from his home.

The evidence was incriminating: the email address used to leak the photos was associated with his computer.  No prosecution ensued.  Instead, disciplinary proceedings were issued.  The prosecutors sought to use the evidence seized in the search warrant.  The policeman sought a declaration that the evidence was inadmissible.  The Supreme Court of Queensland granted the declaration: examining the scheme of the statute which authorised the search warrant, Atkinson J found an implied restraint on the use of the information otherwise than for the purposes of the criminal investigation in aid of which it was granted.

This is an application of established principle (see these previous posts: one, two, three, four), but it is a nice case because its scope is confined exclusively to this issue, and it occurs in the context of a statutory disciplinary regime.  The discussion of the law, which commences at [27], is set out in full below. Continue reading “More on the constraints on the use of information obtained under statutory powers”

Posted on

2014, not such a great year (beheadings, ebola, deforestation)

Russia Back, after that long excursion (structure is for advices; meandering is for holiday blog posts), to aviation. In the middle of the year, 414 people died in plane crashes within a week when a Malaysian Airlines and an Air Algerie aircraft crashed in Ukraine (killing 27 Australians) and Mali respectively. The former was shot down and the question is to what extent Russia was directly involved. Continue reading “2014, not such a great year (beheadings, ebola, deforestation)”

Posted on

2014: not such a great year (offshore imprisonment of people who are not alleged to have done anything wrong, far away from journalists and Human Rights Commissioners)

I have already covered the 2014 exploits of the Minister for Making Refugees Disappear vis-a-vis, especially, the poor Tamils. As I write, dreadful scenes are playing out in one of the regional Australian centres for the infliction of misery where we imprison people without the slightest involvement of the judiciary who have done not the slightest legal wrong in conditions of the utmost secrecy justified by a ‘war’ which is not a real war.  Wonder where we got that model from!

There are advantages in having private contractors at the beck and call of the Minister for Making Refugees Disappear do the dirty on the poor bastards fleeing terror and horror in an extra-territorial malaria-infested island in a desperately poor nation where violent thugs who don’t like gay or sub-continental or middle eastern refugees much abound.  For example, the Solicitor-General advised the government that Gillian Triggs, Chair of the government’s own Human Rights Commission, and Emeritus Professor at the University of Sydney, cannot investigate complaints about the trashing by Australians of the human rights of poor bastards going mad in sub-standard jails staffed by private security guards instead of public servants.  There was no rush that I heard about to plug this alarming alleged loophole in her governing statute.

2014 saw MP Andrew Wilkie ask the International Criminal Court to investigate Tony Abbott and Scott Morrison and in fact the whole cabinet for crimes against international law in their treatment of refugees.  I have no idea what the outcome of that was.

Reza Berati was killed — murdered in all likelihood — on Manus Island.   Continue reading “2014: not such a great year (offshore imprisonment of people who are not alleged to have done anything wrong, far away from journalists and Human Rights Commissioners)”

Posted on

2014: not such a great year (planes, boats, Sri Lanka)

It felt like it was surely the worst year ever for plane crashes.  In fact, many more civilians used to die in aviation disasters each year for a long time, and the figures were even less dramatic when expressed as passenger deaths per million flights. 2014 was actually the year in which there were the fewest fatal civilian passenger airline crashes even though more than 1000 people perished. But planes do not generally go missing, never to be found.  And nice countries like Russia don’t generally shoot them down either, so it was all certainly newsworthy.

Just weeks ago, an Air Asia flight crashed into the sea in Indonesia with 162 people on board.  We will come to the crashes in Ukraine and Algeria later on. Early on in 2014, a Malaysian Airlines plane carrying 239 people  disappeared without a trace.  What to make of the fact that the pilot’s wife reportedly moved out with their children the day before, and that he did not make any social or professional plans for after the flight? the world’s people wondered in an orgy of circumstantial reasoning which never really went anywhere.

In fact, there was a precedent in 2014 for pilots doing strange things. An unarmed co-pilot locked the pilot out of the cockpit while he was taking a leak and diverted an Ethiopian Airlines flight scheduled from Addis to Rome so as to land in Geneva where he sought political asylum.  I can understand why a man might want to get out of the economic proto-powerhouse Ethiopia is becoming 30 years after the famine (it imports 10 million litres of wine): dissidents are not tolerated. But why not just get out in Rome, and seek asylum there, avoiding the likely 20 years in jail for hijacking? Continue reading “2014: not such a great year (planes, boats, Sri Lanka)”

Posted on

2014, not such a great year (intro)

Welcome back then.  2014 was a lovely year in Melbourne, but damn was it an awful year in a lot of other places. Spectacular aviation disasters bookended and bisected the year.  In fact it was probably these disasters which got me off my holiday butt for the first time since 2007 to write a wrap of the year, but as we will see the aviation fatalities statistics are not particularly remarkable.  Much more dreadful things happened or came fully to light, as we will also see.  (This is part 1.  Part 2 is here.  Part 3 is here.  And Part 4 is here.)

We began to focus on Boko Haram when they seized an exam hall full of aspirant physicists and sold the Nigerian schoolgirls into slavery.  The State, deeply infiltrated by the nutcase insurgents, seemed paralysed in response.  Up the coast, a plague raged which had desperately poor people hemorrhaging painfully to death in gutters, untouchable, unaided though all they really needed was logistics and saline drips.  Mediaeval atrocities were meted out in a purported Islamic caliphate willy nilly by the other arm of ISIS.  (It may be preferable to refer to these nutjobs as Dai’sh (the Arabic acronym) so as to repudiate the brigands’  invocation of Islam. The French are quite diligent in this respect and The Age suggested that this created a particular hatred in the minds of Islamic extremists which has now played out in 2015.)

A young French economist put out a 700 page economics treatise on inequality which unpredictably  became in 2014 a number one bestseller on Amazon. Then he declined to receive the Legion d’Honneur.  Meanwhile, Earth’s richest 400 people got about $115 billion richer (so that they now have $1.4 trillion, roughly Australia’s 2014 GDP).  In fact, the richest 1% of people own nearly half the world’s financial wealth, according to a 2014 report, while the poorest 50% own less than than the richest 85 people. In fact,  the richest 1% are set to own more than the other 99% by the end of this year, according to Oxfam. All this became mainstream discussion because of Pikkety.  Bill Gates came out and agreed with many of Thomas Pikkety’s theses and conservatives generally felt free publicly to agree that extreme wealth disparity was not entirely idyllic, which seems like a change to me.

Naomi Klein published This Changes Everything, arguing persuasively that tinkering around the edges of the climate change disaster, as we are, is doomed to failure.  She’s talking about a revolution.  Robert Manne, a former editor of Quadrant and ardent anti-communist, described it in a magazine published by a wealthy property developer as ‘among the most brilliant and important books of recent times‘.  It rammed home to me the message that, 20 years into the desultory climate talks we have been having, the spewing of CO2 has only increased annually.  All we ever do is argue about how much we might promise to reduce, in the future, the rate of the spew. And then it was, worldwide, the hottest and most CO2 soiled year ever, with the greatest increase in CO2 emissions.  Something, no doubt, to do with the fact observed by Vaclav Smil, which rose to prominence last year, that China has in recent times used as much concrete in three years as America did in the 20th century. Last year was the third hottest year for Australia since records began — almost a whole degree hotter than the 1960-1990 average — and the second hottest years since records began in Victoria and NSW.  Last year concluded Australia’s hottest ever 24 months.

A US Senate Committee published a report (read it here) on the CIA’s joint venture with Gaddafi, Assad, and Mubarak to torture people between 2002 and 2006.  Its 600 pages have been well summarised thus:

“The torture was far more brutal than we thought, and the CIA lied about that. It didn’t work, and they lied about that too. It produced so much bad intel that it most likely impaired our national security, and of course they lied about that as well. They lied to Congress, they lied to the president, and they lied to the media. Despite this, they are still defending their actions.”

Of course the issue in 2014 of the report was good news, since it is rare for regimes engaged in terrible breaches of international law to investigate thoroughly and then publish the detailed report.  But as we will see, its contents were bad news from not so long ago, brought to light.  So was the fact that it represented a blip on most people’s radars, if they learnt of it at all.  And so was the fact that, as far as I can tell from down here at the bottom of the world, nothing changed.  Obama said hokily ‘We tortured some folk’, a grotesque sentence even before the addition of ‘It’s important for us not to feel sanctimonious in retrospect about the tough job those folks had.’  (You see?  The victims and the torturers were all the kind of kind and ordinary people that go to folk festivals, together.)  Well, I for one feel sanctimonious about those miserable sadistic nobs who trashed the values they purport to police and then spread lies to the media in an entirely successful propaganda campaign.  Dick Cheney continues to tell lies in his response to the report.

There was so much terrible, terrible war: South Sudan, the Central African Republic, Syria, Dai’sh, extra-judicial executions by drones.  So many beheadings and crucifixions, including a couple of westerners, Aussie kids with severed heads.  Nice white people doing things like invading, and annexing the neighbours under cover of preposterous propaganda worthy of the Chinese or North Korean regimes. So terribly little talk of peace, and international law and, domestically, the rule of law.  The absolute contempt for the most fundamental norms of international law — peaceful resolution of disputes, non-acquisition of sovereignty by conquest, minimum standards for the treatment of captured enemies, the prohibition of torture, non-refoulement — has to be corrosive of the rule of domestic law.  I feel relatively safe in saying that that can’t be good.  That is all I’m saying in much of what follows because, for example, I wouldn’t have a clue about how happy the people of Crimea are to be back in the bosom of Mother Russia, and am not really sure what I would do if I were Immigration Minister; I just know what I would not be doing.  (More — quite a lot actually — to follow in the coming days)

Posted on

Unqualified costs consultants

There has been another challenge to the legality of the work done by non-lawyer costs consultants.  It did not go anywhere because of deficiencies in the way the client (himself a lawyer) went about trying to prove in the Magistrates’ Court that the costs consultant in question (a struck off lawyer) had engaged in unqualified practice, and because of the limited nature of an appeal from a Magistrate. The Supreme Court’s judges also emphasised the exactness of proof necessary to establish a breach of s. 2.2.2 Legal Profession Act 2004‘s prohibition on unqualified practice, given that it sets up an indictable criminal offence punishable by up to 2 years’ jail.  Such exactness is needed even in civil proceedings which obviously do not carry criminal consequences.

But as three judges of the Supreme Court made clear, all this means is that this was not the vehicle to decide just how much non-lawyers are permitted to do in the realm of costs law, and subject to what level of supervision by a lawyer, and there is little solace for unqualified costs consultants in the judgments.

The reasons of the Court of Appeal for not granting leave to appeal the Supreme Court’s dismissal of an appeal from a Magistrate are: Defteros v JS [2014] VSCA 154.  They are interesting for three reasons:

1.  They endorse comments made by the Costs Judge in a June 2010 decision as to the need for consideration of reform of the ‘mini-industry’ of costs consultants (Kaye J did so at [2014] VSC 205 at [85] and Santamaria JA (with whom Neave JA agreed) did so at [2014] VSCA 154 at [21]);

2.  They record an interesting submission of counsel, namely that the solicitor client was relying on his own contempt of the Supreme Court by asserting as a defence to a suit for fees a statutory prohibition on the recovery of money charged for the provision of legal services in contravention of the prohibition on unqualified practice — the contempt arose, so the argument ran, because the solicitor well knew at all relevant times that the costs consultant was not a practising certificate holder, and so had permitted the costs consultant to engage in unqualified practice if it had occurred, contrary to s. 2.2.10 of the Legal Profession Act 2004; and

3.  They emphasise the modern trend of leaving to the Costs Court questions which have traditionally been dealt with by certificates of the trial judge (e.g. certification for two counsel).

It will not be too long before someone takes a grip of this issue and runs a test case carefully.  An alternative battle ground might be found if the unqualified costs lawyers seek to influence the makers of the forthcoming Uniform Rules of professional conduct so as to provide an exemption for unqualified costs lawyers from the prohibition on unqualified practice: see s. 10(3), Legal Profession Uniform Law (Vic).  That seems to me to be the most efficient means of resolving the question.  In my books, if there is to be a place for the continued operation of unqualified practitioners there may be a case for restricting the exemption from unqualified practice to existing practitioners and closely defining the permissible ambit of their activities, perhaps to party-party disputes. Continue reading “Unqualified costs consultants”

Posted on

New South Wales Law Society misconceivedly suspends sole practitioner’s PC peremptorily

In Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487, the Law Society suspended a sole practitioner’s practising certificate with immediate effect and appointed a manager to his practice.  He had not responded to commands by a trust investigator to produce documents and answer questions in relation to a disciplinary complaint.  The Society said that he had failed to do so wilfully and without reasonable excuse, and this, it said, made it necessary to abolish the man’s livelihood.

Hoeben CJ at CL found that the commands were invalid in law, and there had been no failure at all to comply with them.  But even if the Society’s interpretation of the provisions of the Legal Profession Act 2004 (NSW) in question had been correct so that there had been a failure to comply with them, his Honour said, this would still not have been an appropriate occasion on which to exercise the ’emergency powers’ which the Law Society exercised.  It simply was not ‘necessary’ for the protection of the public to shut down a sole practice like that.  Especially since, prima facie, the appropriate place for the complainant to raise the practitioner’s conduct was in the proceedings in the Supreme Court of Victoria which were the backdrop to the conduct complained of and which were pending at the time of the complaint.  And more especially still where the practitioner had cited the commercial sensitivity to that litigation of confidential information sought by the Law Society and had suggested that the investigation be paused pending the imminent completion of those proceedings.

Given that the complaint in which the practitioner was said wilfully to have failed to obey the stipes’ commands was the complaint of a non-client, I will be interested to learn what it is about NSW law which means that the solicitor could be obliged to deliver up privileged information even if the commander had the power to issue the commands.  The Victorian Bureau de Spank has no such powers: B v Auckland District Law Society [2003] UKPC 38, a decision of the Privy Council and Legal Services Commissioner v Shulsinger [2010] VCAT 965. Continue reading “New South Wales Law Society misconceivedly suspends sole practitioner’s PC peremptorily”