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Uniform Legal Services Council appointed

Following the appointment a little while ago of the inaugural Commissioner for Uniform Legal Services Regulation, Dale Boucher, The Victorian and NSW Attorneys General have announced the appointment of the Uniform Legal Services Council, the blokes who are to be responsible for the conduct rules which will shortly govern all Victorian and NSW lawyers.  Their bios follow.

I am currently drafting a costs agreement to comply with the new Act and rules.  Some of the law relating to costs as between solicitor and client has not yet been made, because the new Act provides for it to be made by the new rules.  Some time ago the Legal Services Board circulated to the Victorian profession for comment a draft of the rules which I had assumed would come into force more or less as circulated.  They were developed by the Law Council of Australia and were branded as the ‘Australian Solicitors Conduct Rules’.  When it became apparent that this new Council was to be established, however, the Victorian Legal Services Board decided not to adopt them so that the Council could do its work afresh or at least unaffected by the recent adoption by one of the two participants in the ‘national scheme of a new set of rules.  So there will be another round of consultation, and the detail of the new law may not be finalised until some time rather shortly prior to its commencement which was slated, last I heard, for early next year. Continue reading “Uniform Legal Services Council appointed”

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Executrixes’ denial of deceased’s alcoholism without any proper factual foundation results in indemnity costs order

Hartnett v Taylor [2014] VSC 501 was a Part IV claim for testators’ family maintenance.  The defendant executrixes said that the plaintiffs’ conduct led to estrangement from the deceased and to the deceased’s alcoholism.  The plaintiffs said that the deceased’s alcoholism led to their estrangement, and that is what Sifris J found.  The defendant executrixes’ contention was one which was contradicted by their own witness, the deceased’s doctor, who said that the deceased was an alcoholic before the estrangement with the plaintiffs.  Sifris J said:

’12 It is in my view clear that the defendants’ evidence and contentions in relation to the deceased’s alcohol consumption and the estrangement from the plaintiffs were made in wilful disregard of known facts and were allegations which ought never have been made. This provides a sufficient basis for an order for indemnity costs notwithstanding that the defendants are not personally liable for such costs.’

Regrettably, the plaintiffs do not appear to have argued the case under s. 18(d) of the Civil Procedure Act 2010.  I say ‘regrettably’ because it is desirable that a coherent and easily accessible body of law about the costs consequences of the making of allegations without a proper factual foundation grow up around the new statutory provision.

Then Sifris J denied the second defendant her costs of being separately represented, since there was no need for the two executrixes to have separate representation.

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Client obtains Anton Piller order over solicitor’s hard disk in fees dispute

Ho v Fordyce [2014] NSWSC 1404 is a decision in an ex parte application of which the solicitor had no notice and did not participate. There is a dispute between solicitor and client in relation to fees.  The client contended that costs agreements relied on by the solicitor were ‘a recent invention’.  Given that the client asserts that there was no costs agreement, presumably the implication is that someone forged the documents relied on by the solicitor.  The client applied for an Anton Piller-like order allowing IT people to march into the solicitor’s office and copy certain contents of the solicitor’s hard disk in order to preserve evidence which may assist in proving the implied fraud.

In a brief judgment given ex tempore, Rein J granted the application, relying on a decision of the Victorian Supreme Court’s Justice McMillan. The question of the likelihood of privileged material being present on the firm’s computers is not something discussed in the reasons.  It may well be dealt with in the order, which is not reproduced in the reasons. I have never heard of any such application having been made by a client or granted against a solicitor in such circumstances before.

What his Honour said was:

’10  I do not wish to suggest that I am satisfied at this stage that there has been any false creation of documents. Rather there is a contention that it has occurred, and there is some support for that possibility in the evidence which has been presented. If it has occurred it will be difficult to prove and, if the secrecy of this application were not preserved until the point at which someone independent is at the office to obtain copies, the opportunity to establish that there has been recent creation (if that be the fact) will be lost.

11  In other words, for the plaintiff to have to present a normal application for discovery may act to the disadvantage of the plaintiff forensically and, accordingly, in circumstances where (a) the ambit of information which is sought is very narrow and (b) the consequences of the making of these orders will be of very limited effect, if it turns out that there has been no recent creation, weighs in favour of the making of the order.’

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What does an indemnity costs order actually get you?

On 3 October 2014, Besanko J decided in Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2014] FCA 1066 that an order of a fellow judge that one party pay the other’s costs on an indemnity basis, which did not specify that the costs were to be assessed by reference to the successful party’s costs agreement with its solicitors, entitled it to costs assessed on that basis.

The Federal Court is therefore a better place to get an indemnity costs order than the Supreme Court because the law in the Supreme Court, as determined by the Costs Judge,  is that the beneficiary of an indemnity costs order gets costs assessed according to the same scale as ordinary costs are assessed by reference to, but with an easier road to showing that the costs incurred ought to be paid by the other party at all: ACN 074 971 109 as trustee for the Argo Unit Trust v National Mutual Life Association of Australia Limited [2013] VSC 137.

In the Supreme Court, of course, a special costs order allowing costs to be taxed by reference to the costs agreement may still be sought, and obtained, e.g. Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399.  But that is the exception rather than the default, and one which many trial counsel may not be aware of.

So badly do many trial counsel deal with the question of costs that it really would not be a bad idea if litigants got advice more often than they do from costs lawyers before costs fell to be argued in any case in which there are substantial costs and fault in the costs sense on both sides, or a number of interlocutory costs issues remaining for determination.

Mind you, according to Besanko J, it has long been thus.  His Honour pointed to Beach Petroleum NL v Johnson (1995) 57 FCR 119 at 121 (per Von Doussa J) and older cases from other jurisdictions.

This case demonstrates that ultimately what determines questions of costs is always the statutory instrument which provides for them.  Increasingly, one jurisdiction’s jurisprudence will not prove persuasive in relation to different statutory regimes.

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What orders ought follow the setting aside of a costs agreement?

BGM v Australian Lawyers Group Pty Ltd [2014] WASC 290 (S) is a decision confined to questions about what ought to follow from a Court coming to a view that a costs agreement ought to be set aside.  Three matters are of interest:

1.  The Court took the view that it followed as a matter of statutory construction that upon a costs agreement being set aside, bills rendered pursuant to it were of no force and effect, and declined to make a declaration to that effect because it was unnecessary.

2. Though the Court assumed that some form of restitutionary relief would entitle the applicant to repayment of monies paid under such bills, the Court declined to make any such order because no such relief had been pleaded in the originating process.

3.  The Court declined an application for costs by the successful applicant for the setting aside of the costs agreement.  It did so on the basis that there was a Calderbank offer to accept a sum of money in satisfaction of the lawyers’ claim to fees.  The applicant argued that it had succeeded in the application to set aside the costs agreement and that the Calderbank offer should be brought to bear in the subsequent phase of ascertaining the fees against a scale which applied in default of the costs agreement having application.  But the Court reserved the question of the costs of the application to set aside the costs agreement pending the finalisation of that second phase.

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Law firm sued for recommending wife hacks husband

London firm Mischon de Reya — cool name don’t you think? — puts out a newsletter about fraud. Here is a bite from the latest one:

‘Lawyers for a woman divorcing her husband recommended computer experts who could hack into her husband’s computer and iPhone. The husband’s lawyers have been given the go ahead to appeal the divorce ruling in what could be a landmark case concerning the use of information obtained legally [sic. but should be ‘illegally’]. The Singapore High Court said that the law firm could be guilty of perjury, breach of professional ethics, and other crimes under the Computer Misuse Act.’
The Straits Times, 17 September 2014

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The Lawchestra’s second ever concert

The Lawchestra, about which I have troubled you before, is playing again this Sunday after we totally nailed the last concert (photos from the brilliant young photographer and law student Sean R. Ali here). It was thanks to the good work of Robert Dora, the conductor.  Man does he have a hard job.  Orchestras like the Melbourne Symphony Orchestra run themselves and the conductors just add an air of distinguished flamboyance.  But conducting a community orchestra, the conductor really has to work hard to cue people, explain to them without speaking or stopping wagging the baton that they came in a bar early, as well as drag some dynamic contrast out of players more worried about playing the right notes than where to diminuendo.  It’s a high-risk, high-stress job, and Dora the Conductor is great.  So is the gorgeous soloist, Natasha Lin.  You should definitely come: book here.  Even The Age says so. Continue reading “The Lawchestra’s second ever concert”

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Change

Just when everyone finally stopped calling the Legal Profession Act 2004 the ‘new Act’, we’re set to have another one from early next year.  This is supposed to simplify things, just like the new Act was intended to simplify things. Sigh.  You can read about it here (and if you do, you will learn the surprising fact that the obligation on lawyers to charge no more than fair and reasonable costs is a ‘change’ in the law.)

And there are other developments which are more obviously changes too.  The functions traditionally carried out by the Law Institute, first as the regulator, and then as a delegate of the independent regulators created by statute — the issuing of practising certificates and the investigation of disciplinary complaints — are no longer being carried on by it.  Old names from this part of the Institute are gone — Joe Barravecchio, Jim Leach, Helen Hartsias.

Of course Steve Mark retired recently, and the hunt continues for a new Commissioner for NSW, and Robert Brittan replaced John Briton in Queensland.

One thing that’s not changing is Victoria’s Legal Services Commissioner, Michael McGarvie, who has just been reappointed for a further 5 year term in which he will preside over an expanded local regulatory empire with exciting new powers while liaising to an unprecedented extent with his NSW — and perhaps soon other states’ — Commissioners.

But there have recently been two key new appointments worthy of reportage: Continue reading “Change”

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Jury verdict overturned by VSCA because of insinuation in cross-examination without adequate factual foundation

In Green v Emergency Services Telecommunications Authority [2014] VSCA 207, the Victorian Court of Appeal today overturned a jury’s verdict following a nine-day trial. There had been a miscarriage of justice occasioned by the manner in which the plaintiff was cross-examined by the defendant’s trial counsel.  He had made an allegation of recent invention involving a conspiracy between her and her solicitors to concoct a story. Continue reading “Jury verdict overturned by VSCA because of insinuation in cross-examination without adequate factual foundation”

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NZCA stomps on attempt to limit costs against disciplinary bodies

In Roberts v A Professional Committee of the Nursing Council of New Zealand [2014] NZCA 141 a nurse had pleaded guilty to having sex with a vulnerable patient.  He had been suspended from nursing for three years.  The High Court upheld his appeal and reduced his period of suspension to 18 months, precisely as he had requested.  It dismissed the cross-appeal, which contended that he should have been deregistered.  He sought costs.  He got costs of the cross-appeal, fixed at 25% of the costs of the appeal because it had been doomed to fail and should never have been brought.  But he failed in his claim for costs of his own appeal though he had obtained in it precisely what he had sought.

Why? Because there were no ‘compelling reasons’ justifying such an order.  The High Court noted that unlike disciplinary cases against lawyers, where first instance decision makers were empowered to make orders for and against the legal regulator, costs orders could be made only in favour of the nurses’ disciplinarian.  The first-instance immunity to costs of nurses, and the important public function of the maintenance of standards in the provision of healthcare caused the High Court to carve out of quite a prescriptive costs regime in the High Court rules, one of the policies of which is apparently to make costs decisions predictable, a ‘compelling reasons’ threshold.  So he did not get costs of his own appeal.  He appealed again, on costs. The Court of Appeal allowed his appeal, and found there was no ‘compelling reasons’ threshold to be overcome before costs could be awarded against disciplinary regulators.  The judges unanimously said: Continue reading “NZCA stomps on attempt to limit costs against disciplinary bodies”

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R v Milat: A Case Study in Cross-Examination

British backpacker Paul Onions got away from Ivan Milat on 25 January 1990, after Milat pulled a gun on him after giving him a lift.  He ran off, zigzagging to avoid being shot to death and managed to hail a passing motorist as Milat’s shot missed him.  The police did not do anything much in response to his report and, tragically, Mr Milat was more successful with at least seven others who were in 1992 found murdered in the Belangolo State Forest.  One had been decapitated. Continue reading “R v Milat: A Case Study in Cross-Examination”

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VCAT’s Legal Practice List and the Privilege Against Penalties

I have been banging on about the privilege against penalties for a long time.  VCAT used routinely to require respondents in disciplinary proceedings to submit witness statements prior to the final hearing.  Then the Court of Appeal admonished it for doing so in Towie v Medical Practitioners Board of Victoria [2008] VSCA 157.  (That case stands for the proposition, incidentally, still not perfectly understood by people who probably should understand it, that even expert evidence of a respondent need not be filed prior to the close of the prosecution’s case: see the Court at [10], apparently approving ASIC v Plymin (2002) 4 VR 168 at [10].)

All this did not stop certain regulators inviting respondents to consent to orders to that effect without bringing the privilege against penalties or Towie’s Case to their attention and serving ‘Notices to Admit’.  Some of my clients, keen to save an appearance fee of a few hundred dollars, consented to such orders. Continue reading “VCAT’s Legal Practice List and the Privilege Against Penalties”

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Director ordered to pay company’s £35M and counting costs liability

Updated post, 1 March 2016: Decision upheld by UK Court of Appeal: [2016] EWCA Civ 23.  A note of the appeal decision is here. It reveals that Mr Vik’s costs liability is about £50 million. Ouch.

Original post: Deutsche Bank AG v Sebastian Holdings Incorporated [2014] EWHC 2073 (Comm) is big.  Deutsche Bank sued a company in the English High Court and got a quarter of a billion American dollars judgment.  Justice Cooke also ordered the company to pay costs and ordered  an interim payment towards the company’s costs liability of about £35 million within a fortnight.  The company, a special purpose shell company incorporated in the Turks & Caicos (a British territory in the Bahamas and offshore financial centre), didn’t pay.  The plaintiff successfully applied ex parte to join the company’s sole shareholder and director and effect substituted service in the US.  He is the Norwegian born, Swedish raised, Harvard educated, Monaco domiciled Alexander Vik, said to have been miraculously lucky in his path to billionnairedom.  Until now…

The plaintiff then succeeded in its non-party costs order against the director for the reasons set out below.  It seems all the rage over in England; consider also Xhosa Office Rentals Ltd v Multi High Tech PCB Ltd [2014] EWHC 1286 (QB).  (And see also this post about a similar decision in Victoria, Lillas and Loel Lawyers Pty Ltd v Celona [2014] VSCA 70.  Even more recently, see JJES Pty Ltd v Sayan (No 2) [2014] NSWSC 475 in which the director of a corporate plaintiff which sued its solicitors for professional negligence was ordered to pay the solicitors’ costs personally on an indemnity basis.  It refers to two more authorities directly on point: FPM Constructions v Council of City of Blue Mountains [2005] NSWCA 340, and May v Christodoulou [2011] NSWCA 75; (2011) 80 NSWLR 462) Continue reading “Director ordered to pay company’s £35M and counting costs liability”

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Costs of a solicitor’s negligence claim which bombed only on causation; costs of the successful solicitor’s unsuccessful proportionate liability defence

In King v Benecke [2014] NSWSC 957, Mr King alleged that his solicitor was negligent.  The solicitor denied everything and lost on all but one issue, namely causation, with the result that the solicitor got judgment and Mr King only Pyrrhic victories.

Mr King argued he should not have to pay all of the solicitor’s costs.  Rather, he argued, he should have his costs of the issues on which he succeeded (duty, breach, the proportionate liability defence), which took up most of the case.

Harrison J only acceded to that argument in one respect.  The solicitor had alleged that Mr King’s solicitors in the professional negligence suit were themselves concurrent wrongdoers against whom some of any liability which might be established against him ought to be apportioned under the proportionate liability regime.  The consequence was that Mr King had to get new solicitors, the plea having put the old ones into a position of conflict between self-interest and duty to Mr King.

The solicitor never adduced any evidence in support of the proportionate liability defence.  His Honour found that Mr King should have his costs of and incidental to it, but otherwise pay the solicitor’s costs of the entire proceeding: Continue reading “Costs of a solicitor’s negligence claim which bombed only on causation; costs of the successful solicitor’s unsuccessful proportionate liability defence”

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Solicitor’s creditors statutory demand set aside because of alleged non-compliance with costs disclosure obligations prior to settlement of client’s case

In IMO Speedy Loans Pty Ltd [2014] VSC 273, a Victorian law firm delivered a creditors statutory demand to a company which was its former client.  The client convinced Gardiner AsJ to set it aside exclusively by reference to an argument that by virtue of s. 3.4.17(1) of the Legal Profession Act 2004, the client was not yet obliged to pay the fees, no taxation (‘costs review’) having yet occurred.  That was because there was an alleged failure to comply with the s. 3.4.16 requirement to provide costs estimates prior to the negotiation of the compromise of a litigious proceeding.

The lawyer involved swore that he had done so orally and the client swore that the lawyer had not. There was, accordingly, a genuine dispute as to the indebtedness of the company and the statutory demand had to be set aside. Lesson: give written disclosures even when writing is not specifically required.  And be very sure of perfect compliance before suing for fees or issuing a creditors’ statutory demand.  Otherwise, seek taxation of your own costs, following which the Costs Court will ordinarily make an order for payment of the taxed sum (or simply write off the fees as uncommercial to recover).

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Costs in settlements of claims by persons under disability

Associate Justice Lansdowne has released for publication an edited transcript of reasons her Honour gave in Chan v Falls Creek Alpine Resort Management Board for not approving a proposed compromise of the claim of a person under a disability. The citation for the decision is  [2014] VSC 314.  ‘Disability’ in this sense is a term of art and extends to the disability of being a minor.

The plaintiff, through his litigation guardian, had proposed a compromise in terms which were expressed as an amount for the claim and an amount for his costs.  Her Honour pointed to Sztockman v Taylor [1979] VR 572 which suggests that such compromises are to be discouraged lest the plaintiff’s solicitors be attracted to an offer which is comparatively favourable in relation to costs but comparatively unfavourable in relation to the claim.  That raises a conflict between interest and duty which is inherent in any compromise structured this way, but which is comparatively impermissible because of the disability of the plaintiff and the important role played by the parties’ lawyers in assisting the Court to evaluate the reasonableness of the compromise, a judicial function which is not a feature of compromises of claims by people not under a disability.  Another reason for the discouragement of such compromises is that the judge approving the compromise is ill-equipped to assess the reasonableness of the proposed compromise in relation to costs.

Following the non-approval of the compromise, the deal was renegotiated such that the settlement sum was expressed on an all-in basis as the total of the separate sums originally proposed by way of compromise of the claim and of costs.  That sum was to be paid to the Senior Master and the plaintiff’s solicitors were to apply to the Senior Master for costs.  The renegotiated proposed compromise was approved by the Court.

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18 good places to stay in Bali, none of them in Kuta

I’m off to Bali and Java soon.  An instructress too and as I gathered together for her some good places to stay in Bali today, I thought to share them with you; my other post about Bali is lost in the increasingly large archives.  Brush up on the Schapelle Corby saga before you go to improve discussions with taxi drivers.

 South Coast Desa Seni (Canggu: the far western extremity of the Kuta connurbation) Hotel Tugu (Canggu) Tandjung Sari (Sanur, not quite part of the Kuta connurbation) This cliff-top home in Bingin on the Bukit Peninsula (surfing territory) Mu Bali in the same region.

East Coast Seraya Shores

North Coast Taman Selini (Permuteran) Cilik’s Beach Garden (Yeh Sanih)

In the middle Taman Bebek (in Sayan, bordering Ubud) Murni’s House (central Ubud) The Tjampuhan (central Ubud) Bambu Indah (outer Ubud) Bali Eco Stay (Mt Batakaru) Bali Eco Lodge (Mt Batakaru) This Ubud home on Airbnb or this one, nearby. Or this one, or any of the same owner’s properties. This homestay ($55 per night) near Ubud.    

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To accept a reprimand or not to accept a reprimand?

Update, 17 October 2014: K-R v Council of the Law Society of New South Wales [2014] NSWCATOD 115 provides an example of poor decision making when a disciplinary investigation was resolved by a reprimand imposed by the NSW Law Society instead of by disciplinary prosecution in NCAT (NSW’s VCAT).  The Council got the law wrong, and got another thing wrong too.  Even if the law was as the Council wrongly believed, the practitioner’s construction of the law was not so unreasonable as to justify a finding that her conduct, engaged in in the belief that her construction was right, amounted even to unsatisfactory professional conduct.  It would just have been a mistake which did not warrant discipline and the Council should not have arrived at the state of satisfaction which triggers the power to reprimand.  That is, the Council should not have been satisfied in the circumstances that there is a reasonable likelihood that the practitioner would be found by the disciplinary tribunal to have engaged in unsatisfactory professional conduct if prosecuted.  Sometimes — not always — I get the impression from Australian Bureaux de Spanque that most breaches of the Act or conduct rules automatically equate to unsatisfactory professional conduct.  Of course that is not so.  Sometimes I get the impression that there is a regulatory position that breach of the trust accounting rules automatically equates to professional misconduct.  This decision demonstrates that that is not so.

In the last paragraph of the reasons, members Chesterman, Riordan and Hayes observed that the whole idea of disciplining practitioners based on satisfaction of a reasonable likelihood that a prosecution would be successful was ‘unsatisfactory’:

‘In conclusion, we wish to draw attention to an aspect of section 540 that we regard as unsatisfactory. In its present form, it can produce the outcome that a legal practitioner is reprimanded (or is subjected to one or more of the other lesser penalties listed in subsection (2)) even though it has not been affirmatively shown that he or she engaged in unsatisfactory professional conduct. The lower threshold set out in subsection (1) – that of a ‘reasonable likelihood’ of such a finding – applies both when the Legal Services Commissioner or a Council chooses to invoke the section and when administrative review of an adverse decision is sought by the legal practitioner concerned. By contrast, if the matter proceeds by way of a disciplinary application to NCAT (which is now the relevant tribunal), an order by way of penalty will only be made if unsatisfactory professional conduct is proved to NCAT’s satisfaction.’

There are two differences between the NSW provision analysed by this decision and the current Victorian provision.  First, the practitioner’s consent is not a condition of the Bureau de Spanque up North imposing a reprimand.  Secondly, there is a specific statutory right to obtain review of decisions such as this.

Under the Legal Profession Uniform Law to come into force in Victoria and NSW next year, the Bureaux de Spanque will have to make a determination that there has been unsatisfactory professional conduct — none of this ‘satisfied that there is a reasonable likelihood’ nonsense.  It is to be hoped that skilled legal decision makers will be assigned to this quasi judicial task. Once such a determination has been made, however, the Bureaux will have the power to award fines of up to $25,000 or impose other sanctions chosen from a statutory smorgasbord.  Given that fines of $25,000 or more are rare in Victoria and NSW alike, this essentially means, in practical terms, that for most lesser disciplinary complaints, ultimate decision making power is being transferred from public tribunals to employed decision makers operating in private.  I should not be taken to be suggesting that that is necessarily a bad thing.  But it is something which should be discussed.

Of course, many times it may not be possible for a decision maker in the new regime safely to make a determination on the papers without admissions from the respondent.  In those cases, it may well be that the Bureaux would have no choice but to lodge a prosecution or take no further action, even if the practitioner were prepared to consent to the making of a reprimand.

Original post, 17 June 2014: Following a disciplinary investigation, Victoria’s Legal Services Commissioner must form an opinion as to the likelihood of VCAT finding the lawyer guilty of conduct warranting discipline.  If he is satisfied that there is a reasonable likelihood of VCAT finding the lawyer guilty of something, his options depend on what that something is.  If it’s professional misconduct, then he must prosecute.  If it’s unsatisfactory professional conduct, he can take no further action, or he can prosecute.  And then there’s the in between bit: in the case of suspected unsatisfactory professional conduct he can also, with the lawyer’s consent, reprimand the lawyer, caution the lawyer, and require the lawyer to pay compensation to the complainant.  See Legal Profession Act 2004, s. 4.4.13.
Continue reading “To accept a reprimand or not to accept a reprimand?”

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Advocates’ immunity summarily defeats claim alleging negligent advice to settle

I once spent a long time writing an article called ‘Compromise of litigation and lawyers’ liability: Forensic immunity, litigation estoppels, the rule against collateral attack, confidentiality and the modified duty of care’ which was published in the Torts Law Journal when it was edited by Professor Luntz ((2002) 10 TLJ 167), and I acted for the Victorian Bar in relation to D’Orta-Ekenaike v Victoria Legal Aid and instructed in the hearing of that case in the High Court.  So a case like Stillman v Rushbourne [2014] NSWSC 730 is fairly well up my alley.  Three key areas of uncertainty about the scope of and operation of the immunity post-D’Orta have been:

1.  Whether advice to settle which results in settlement can be said to affect the conduct of the cause and so be within the immunity;

2. Whether the immunity extends to intentional wrongs; and

3. When it is appropriate to grant summary judgment by reference to the immunity.

Relatively recently, those issues have become relatively authoritatively resolved in favour of lawyers.  In Stillman, Davies J summarily dismissed a claim against solicitors that they negligently advised settlement and intentionally and wrongfully coerced the plaintiff into settling.  The various authorities on these questions are usefully rehearsed and consolidated by his Honour, making this judgment a useful one-stop shop on these issues.

In relation to allegations of intentional wrongdoing, see also Young v Hones (No.2) [2013] NSWSC 1429.  As to the desirability of dealing with an advocates’ immunity defence at an early stage, including in a summary judgment application, see also Donnellan v Woodland [2012] NSWCA 433, a decision of a bench of five.

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WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline

Traditionally, the law of professional discipline has differed from the law of negligence in three profound ways.  First, its aim is the protection of the public (though the policy in favour of protecting the reputation of the profession grossly infects the purity of this proposition in most analyses).  Secondly, it is about personal wrongdoing.  Statute aside, there is no law of attributed liability in contrast to doctrines such as vicarious liability in the law of negligence.  And thirdly, simple as opposed to gross negligence was never considered to warrant discipline.  Things got messed up by the introduction into disciplinary statutes of a concept of unsatisfactory professional conduct defined in terms identical to the test for simple professional negligence.

Disciplinary tribunals (and, in my experience, disciplinary investigators and prosecutors) seem to lapse from time to time into the language of ‘should have known’ even outside the prosecution of that species of unsatisfactory professional conduct which is defined by reference to the test of simple professional negligence.  Two practitioners had to go to two Courts of Appeal to reverse decisions on dishonesty charges which were horribly infected by objective reasoning:  Legal Services Commissioner v Brereton [2011] VSCA 241 and Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115.  Surprisingly, the former decision did not get a guernsey in the latter.  The law of recklessness is authoritatively restated in the three separate judgments in Giudice and I have set the whole lot out below along with some observations about Brereton’s Case. Continue reading “WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline”