A Christmas present buried deep in the Civil Procedure Rules?

Christmas prezzies sorted? Self-executing orders complied with? Default judgment averted? Holiday booked?

Maybe some of your Christmas deadlines are less pressing than they appear.

Civil litigators should remember at this time of year that the Civil Procedure Rules allow them a bonus 16 days over the Christmas / New Year break to comply with most orders and Court rules containing time limits.

In each of the Supreme, County and Magistrates’ Court rules, time stops running because of Rule 3.04(1). The two alternative formulations of Rule 3.04(1) have identical effect. The Supreme and County Court version provides:

In calculating time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 9 January next following shall be excluded, unless the Court otherwise orders.

An example. A defendant who files an appearance today (Friday, 11 December 2015) would normally as a consequence be required (by Rule 14.02) to serve a defence within 30 days thereafter (ie by Monday, 11 January 2016). But at this time of year that 30 days actually expires in 46 days’ time on Wednesday, 27 January 2016 after allowance is made for the end-of-year suspension of time under Rule 3.04(1) and also the Australia Day holiday on 26 January 2016. (See Rule 3.01(5) as to the effect of public holidays and other days when the courts’ offices are closed).

The Federal Court is even more generous. Its equivalent is Rule 1.61(5) which provides:

If the time fixed by [these Rules or by an order of the Court] includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted.

That was that good news. Now the bad news.

Time pauses for some litigation purposes over the break but not for others.

In Kuek v Victoria Legal Aid [1999] VSC 158 the plaintiff sought to rely upon Rule 3.04(1) to commence an appeal which was otherwise out of time under the Magistrates’ Court Act. He failed. Beach J held that Rule 3.04(1) as a rule of Court could not have the effect of extending a statutory deadline unless the statute concerned (or some other) gave the Court express power to vary that deadline.

So if you have a statutory demand or a potential appeal quietly ticking away on your desk as Christmas approaches, Rule 3.04(1) offers no yuletide peace and goodwill.

But if you have no such time bombs on your desk – Merry Christmas, Happy Chanukah, a Splendid Silly Season and a very happy new year to you.

Uniform Law on costs

Are you a lawyer who likes getting paid?

Then if you are in Victoria or New South Wales you should know the provisions of the new Uniform Law as it relates to lawyers’ costs.

Here is a paper I have prepared on the subject.

I have also done two earlier blogs on the Uniform Law:

Estimating the costs of an impending litigation for disclosure purposes

You are a solicitor about to open a new potential litigation file. It might go all the way to the High Court. But it also might settle in response to your very first letter of demand.

The only real certainty about it is that the new Uniform Law requires you to give your client a written disclosure “as soon as practicable after instructions are initially given” which  must include “an estimate of total legal costs.”  You must then promptly update that disclosure ever thereafter when there is a “significant change to anything previously disclosed” (see s 174 of the Uniform Act).

What does that all mean? This early in the life of the Uniform Law, nobody can be certain but if you get your disclosure wrong (initially and/or subsequently) your costs agreement is likely to be rendered void as a consequence (see s 178(a) of the Uniform Act) and collecting payment will become slow and problematic as a consequence.

So get your costs disclosure right.

Here are some suggestions (but no promises) as to how to go about it.

  1.  Start with one of the Law Institute of Victoria’s disclosure template documents available here. By all means modify the LIV’s wheels to suit your particular situation but don’t reinvent them altogether.
  2. Make your costs estimate sensible. Your client might be dismayed with the bottom line estimate but everyone will be happier to see that figure upfront in an estimate than to be ambushed by something similar in the final bill.
  3. Make the costs estimate transparent to your client. An Excel spreadsheet where you (and the client) can manipulate the variables might be a great way to start. (Help yourself to the template version below.)
  4. Be candid with your client as to the vagaries of both litigation and your estimate. Maybe your client’s case will be quick and simple. But maybe it will become the Battle of the Somme instead, complete with counterclaims, interlocutory skirmishes, third and fourth parties and some stern appellate action to top it all off. Your guess at the very start is possibly only slightly better than your client’s. Don’t pretend otherwise.
  5. Sign the client up to a costs agreement. Again, be guided by the Law Institute precedents.
  6. Having done all of the above, test your client’s comprehension of the strategy and costs being embarked upon. File note it. (Seriously, file note it. You might need those file notes years down the track if your client suggests that language/stress/other issues impeded his/her comprehension of the costs disclosure sufficiently to constitute a breach by you of s 174(3) of the Uniform Law.)
  7. When your costs disclosure then seems complete – remind yourself that it probably isn’t. Your ongoing disclosure obligations endure until the file is actually closed.

Some thoughts on the accompanying spreadsheet
I have drawn the spreadsheet below as an aide-memoire for solicitors attempting to estimate future solicitor/own client costs for Uniform Law disclosure purposes. Inevitably, it will need modification for each actual case.

For template purposes, I have done it for a hypothetical commercial case in the Victorian County Court. The rates I have utilized are derived from the County Court scale (which is, of course, 80 per cent of the Supreme Court scale – see this blog.)

I have made the following viable (but not inevitable) assumptions which might or might not apply to your case. (Change the variables and add or delete new row items to suit your particular client’s anticipated case.)

  • The spreadsheet is for a prospective plaintiff;
  • There is no conditional costs agreement (eg no win/no fee) arrangement proposed;
  • There will be a single claim against a single defendant;
  • There will be no counterclaim, third party claim or similar;
  • There will be no pleading amendments by either side;
  • All directions will be made ‘on the papers’ and by consent;
  • There will be a single contested interlocutory application;
  • There will be a single mediation;
  • There will be a four-day trial with a reserved judgment handed down on an eventual fifth day with short argument that day as to costs, interest and the final form of the Court’s orders;
  • There will be two expert witnesses, (eg an accountant and an engineer) for the plaintiff and no lay witnesses for the plaintiff requiring payment for their attendance;
  • Everything will happen in Melbourne without anyone claiming circuit fees, travel expenses or similar;
  • The barrister will do an initial advice as to merits, draw the statement of claim, do an advice as to evidence, remain involved incidentally throughout the matter and will charge the equivalent of 10 hours’ preparation for each anticipated full day in Court;
  • The solicitor and the single (senior) junior barrister will each charge the client the maximum County Court scale rates applicable to them as of November 2015 (ie solicitor $302.40 per hour and the barrister $432 per hour / $4316 per day in Court) (plus GST in both cases); and
  • There will be no appeal.

Note that because of the technical limitations of WordPress (which hosts this blog) the Excel / Numbers functions formerly embedded in the table below have been lost in posting it here. You can resurrect the table and its functions for your own use by –

  • copying and pasting the table from this blog back into your own Excel / Numbers spreadsheet;
  • restoring the functions manually (eg in Excel you make the formula in D2 read “=PRODUCT(B2:C2)” and then replicate it for the remaining rows;
  • insert/delete rows and increase/decrease the rates and duration estimates to suit the circumstances; and
  • use “AutoSum” to calculate the total.

You might even email a version of your spreadsheet to your client so he/she can also manipulate some of the variables. Emphasize to your client that you are providing an estimate – not a quote and that the defining characteristic of commercial litigation is that it never goes entirely according to the script.

Some parting cautions
Three final issues occur to me that might be prudently flagged as part of your disclosure to your client. (Neither is apparent in the Uniform Law or my spreadsheet.)

  • Most litigation settles well before trial. Some settles during the running of the trial. Of the relatively few cases that run to judgment, some are appealed but most are not. The combined effect of these disparate possibilities is that your initial estimate might legitimately undershoot or overshoot the eventual total that you charge your client drastically.
  • Losers will usually be ordered to pay the winner’s costs. This means that the figure in your compulsory Uniform Law estimate is likely to be substantially wrong in practical net terms. The final, post-trial, net figure your client pays for lawyers’ involvement in the litigation is likely to be much higher or lower than your Uniform Law estimate, depending on whether your client is on the right or wrong end of a substantial costs order.
  • Once embarked upon, litigation can seldom be unilaterally abandoned without adverse costs consequences – see for example Victorian Supreme Court Rule 63.15 and County Court Rule 63.15 about the cost presumptions upon the filing of a notice of discontinuance. This makes dangerous the widely-held view that costs can and should be estimated to prospective litigants as a sequence of distinct figures. Lay clients might reason from an overly segmented disclosure that if they are not enjoying the litigation ride, they might easily and cheaply, unilaterally quit along the way as if alighting from a bus at one of its usual stops. Alas, life and litigation just isn’t as simple as the authors of the Uniform Law apparently believe.

What guarantees do I offer about the spreadsheet? None but any bouquets or brickbats about it are welcome all the same.

Category of legal work estimated time estimate in hours (assume 1 day =10 hours) hourly /unit charge approx total charge
Pre-litigation investigation & negotiation (solicitor) 20 $302 $6,048
Brief to advise (barrister) 10 $432 $4,320
Writ & statement of claim (barrister) 10 $432 $4,320
Filing fee $814 $814
Brief as to evidence (barrister) 10 $432 $4,320
Preparation for and attendance at mediation (solicitor) 6 $302 $1,814
Preparation for and attendance at mediation (barrister) 10 $432 $4,320
Mediator’s fee (half share) $2,000 $2,000
Mediation venue hire (half share) $300 $300
Interlocutory application (solicitor) 10 $432 $4,320
Interlocutory application (barrister) 10 $432 $4,320
Fees for Expert # 1 – report and appearance as expert witness 30 $362 $10,860
Fees for Expert # 2 – report and appearance as expert witness 30 $362 $10,860
Solicitor’s general preparation (including attendances on client, experts, counsel and court, correspondence, offers of compromise, discovery, notices to admit, expert witness notices, preparation of court book etc) 100 $302 $30,200
Trial preparation (barrister) 45 $432 $19,440
Setting down fee $962 $962
Hearing fee (per day of trial from day 2) 3 days $500 $1,500
Solicitor instructing in Court 45 $302 $13,590
Barrister – appearance at trial 40 $432 $17,280
Barrister – taking judgment 5 $432 $2,160
Misc disbursements (eg process servers, company searches, couriers, subpoenas etc) $2,000 $2,000
Trial transcript (4 days @$2250 per day) $10,000 $10,000
TOTAL ESTIMATE $155,748 (plus GST)

Our dishevelled new Uniform Law

What a shambolic creature is the new Legal Profession Uniform Law.

I attempted to translate its provisions relating to costs disclosure and recovery in a presentation for the Goulburn Valley Law Association this week. I reckon I did a reasonably accurate job. I could tell this because my attentive audience seemed to be suitably irritated and confused by the end.

Anybody who claims an entirely confident understanding of the Uniform Law has obviously not read it properly.

By itself, the Uniform Law is frequently unintelligible without reference to the local (ie state) law which adopts it.Because of this, the Uniform Law in Victoria is actually a schedule to the zippily-named Legal Profession Uniform Law Application Act 2014.

This unattractive combination adds up to a combined total of approximately 570 pages and 120,000 words. And that’s before you reach for a third necessary document, the Legal Profession Uniform General Rules 2015 (and disregard other related subordinate legislation).

Between them, these three documents are ostensibly organised into various chapters, parts, divisions and schedules. Indeed, they seem to have more chapters than the Freemasons, more parts than Shakespeare, more divisions than Stalin and more schedules than V/Line. But you can’t be entirely sure because the centrepiece document, the Uniform Law itself, has no index whatsoever and the pagination doesn’t help.

That is bizarre in any legislation but particularly in something that presumably is meant to be accessible to, among others, disgruntled clients looking as lay people to the law for guidance about their rights and obligations vis-a-via their lawyers.

But given the sheer bulk of the Uniform Law package, it must be extraordinarily precise, right?

Wrong again.The mandarins responsible for administering it (for Victorians that means a combination of the Sydney-based Legal Services Council and the Melbourne-based Victorian Legal Services Board and Commissioner) have separate websites, each featuring information sheets for clients and for legal practitioners.

Alas, some of the Victorian Legal Services Board and Commissioner’s info appears to relate to superseded legislation and not to the Uniform Law at all.

And at least one of the Legal Services Council’s flyers makes the confident assertion that the Uniform Law “does not permit” lawyers to express estimated future costs to their clients as a range.

This “cost-estimates-must-not-be-expressed-as-a-range” view is an urban myth also gaining currency at high levels in Victoria.

But it is wrong. (Look, at least, at s 182(3) of the Uniform Law regarding conditional costs agreements and then look (in vain) for any prohibition on cost estimates being expressed as a range in other contexts.)

In August 2015, the Victorian Law Institute Journal breathlessly introduced the Uniform Law to its readers with a cover story entitled “Empowering Clients”. What nonsense. If any lay client can navigate the Uniform Law without professional assistance (which seems improbable) he/she would almost certainly have found (substantially) the same answers much faster under the now-repealed Legal Profession Act.

How did we get lumbered with the Uniform Law? It seemed a good idea to the Council of Australian Governments back in 2009 to have uniform nationwide legislation for the various jurisdictions’ barristers and solicitors. This might have made sense if most of our lawyers and clients were dealing with each other on a nation-wide basis.

But in the real world only substantial commercial and government clients generally operate on that basis. So guess which class of clients is largely excluded from the “protections” offered to clients by the costs provisions of the Uniform Law? You guessed it. Commercial and government clients.

What a mess. Little wonder that since the idea’s inception in 2009 every jurisdiction except Victoria and New South Wales has slipped off the Uniform Law bandwagon.

But enough venting from me.

I ended my Goulburn Valley Law Association presentation this week with what I hope are four practical observations:

  • As ever, costs are only recoverable by solicitors to the extent those costs are fair and reasonable. Costs agreements are prima facie evidence only as to what is fair and reasonable – see s 172(4).
  • Solicitors’ enforcement of costs agreements against clients hinge first and foremost on adequate costs disclosure at the front end. Position yourself to be able to demonstrate this. Employing the LIV’s template disclosure and costs agreement document will be a good start.
  • Even perfect front-end written costs disclosure of itself might still not be sufficient. For the purposes of s 174 of the Uniform Law, solicitors should ideally verify and document the client’s receipt and apparent comprehension of that written disclosure. (The Law Society of NSW suggests a short (and documented) Q & A exchange with the client about the client’s expectations as to costs and strategy following delivery of the written material as one mode of evidencing the client’s apparent understanding of that material.)
  • Perfect disclosure should ensure a valid costs agreement but even a perfect costs agreement isn’t bullet-proof either – see s 199 and s 200. Because of this, there will probably be situations where it will be fastest and cheapest for solicitors to grasp the nettle and initiate a costs assessment (aka a taxation) of their own bills rather than to sue for fees only to have their proceeding stayed pending an assessment anyway. But don’t think about this idea  too long if you are a solicitor because you might be statute-barred by s 198(4) if you wait more than 12 months from the date of your bill before seeking the costs assessment.

Need further clarification? Then reach for the Uniform Law with trepidation.


					

More overblown than overarching: Court of Appeal smacks solis with costs orders and disallows fees

The Victorian Court of Appeal last week thumped three large law firms for work which was not “reasonable and proportionate” within the meaning of the Civil Procedure Act 2010.

What’s more, it effectively invited other Victorian courts to do likewise more often.

The case is Yara Australia Pty Ltd v Oswal [2013] VSCA 337.

Expect to hear a lot more about it. It is the first detailed appellate consideration of the Civil Procedure Act obligations on parties and their lawyers.

Many civil litigators will find it confronting reading.

The case

In Yara, three applicants sought leave to appeal against their failure to obtain security for costs. Although they were later able to point to a wider strategic purpose, the amount of security sought between the three of them ostensibly totalled about $141,000, (relatively small beer for the Court of Appeal.)

The applicants had separate but similar interests. Between them, they were represented by solicitors Clayton Utz, Herbert Smith Freehills and K & L Gates, 3 silks and 3 junior counsel.

Their application went down after a single day’s hearing. And worse was to come for the lawyers.

After refusing the application, the Court of Appeal of its own motion invited submissions on the question of whether anyone had breached their overarching obligations under the Civil Procedure Act 2010 in the conduct of the leave to appeal application.

The resulting judgment starts with two factual questions. “First, whether there was any over- representation of a party by counsel, and second, whether the material produced on the hearing of the application for leave to appeal was unnecessary or excessive.”

The Court was ultimately persuaded that the abundance of barristers did not constitute “over-representation” but it was less forgiving about the documentation filed in support of the application.

Why? Because even excluding the notices of appeal and written cases, the application book exceeded 2700 pages and 6 lever arch folders.

In their joint judgment Redlich and Priest JJA and Macaulay AJA were scathing. They variously described parts of it as “entirely otiose”, “not directly relevant”, “excessive”, “superfluous”, “entirely unnecessary” , “repetitious” and containing “a substantial amount of duplicated material”.

The Court concluded by ordering each applicant to pay the respondents’ costs of the application.

Each applicant’s solicitor was then hit with a double whammy. First, each solicitor was ordered to indemnify its client for half of the respondent’s costs “incurred as a consequence of the excessive or unnecessary content of the application books.” Secondly, each applicant’s solicitor was “disallowed recovery from the applicant of 50% of the costs relating to the application books, and costs incidental thereto.”

Some cherries from the judgment

The Court of Appeal is clearly hoping this approach will catch on.

And judges are being invited to act on their own initiative where the parties themselves are bashful.

Here are some extracts from the judgment (citations omitted) to give you its flavour.

5       The statutory regime and the obligations that are imposed by the [Civil Procedure Act] have not previously been considered in any detail at an appellate level. As the enforcement of the overarching obligations under the Act has been so little traversed, there is presently little to guide judicial officers as to the extent of the Court’s powers and the means by which parties or their legal representatives can be penalised for any contravention. We have thus addressed some of these issues at greater length than would ordinarily be necessary when a contravention of the Act is under consideration.

….

14     Each party and their solicitor and counsel have an obligation to comply with the overarching obligation. Whether any of them have breached that overarching obligation is to be determined by an objective evaluation of their conduct having regard to the issues and the amount in dispute in the proceeding. The legal practitioners’ duty is non-delegable. The obligation will override their duty to their client where the discharge of that duty would be inconsistent with the overarching obligation. The legal practitioner will not be relieved of this overarching responsibility because of the instructions of their client.

15     Legal practitioners, whether solicitor or counsel, involved in the preparation of pleadings, affidavits or other materials that are to be used in the proceeding or who provide advice as to such matters, have individual responsibilities to comply with the overarching obligation. Both solicitor and counsel also have an overarching responsibility with respect to the extent and level of their client’s representation. Each must ensure that, having regard to the issues, the extent and level of representation proposed is reasonable and proportionate. Advice or instructions given or received by legal practitioners, and instructions given by the client, may inform but will not be determinative of the question whether, viewed objectively, there has been a breach of the obligation.

         ….

18     Section 29 of the Act provides the Court with broader and more flexible powers than under the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) or under its inherent jurisdiction. Rule 63.23(1) enables the Court to make orders for costs against a legal practitioner who has caused costs to be incurred improperly by a failure to act with reasonable competence and expedition. However, the primary object of r ? 63.23(1) is not punitive or disciplinary but compensatory, enabling reimbursement of a party’s costs incurred because of the default of the solicitor. The primary object of the Rule is not to punish the solicitor, but to protect the client who has suffered and to indemnify the party who has been injured. Rule 63.23(1) also protects solicitors from the negligence or incompetence of counsel.

20     The Court’s powers under s 29 of the Act include the power to sanction legal practitioners and parties for a contravention of their obligations …. Moreover, the power to sanction is not confined to cases of incompetence or improper conduct by a legal practitioner. Where there is a failure by the practitioner, whether solicitor or counsel, to use reasonable endeavours to comply with the overarching obligations, it will be no answer that the practitioner acted upon the explicit and informed instructions of the client. A sanction may be imposed where, contrary to s 13(3)(b), the legal practitioner acts on the instruction of his or her client in breach of the overarching obligations.

21     …. In our view, the enactment of s 29 together with s 28(2) imbues the Court with broad disciplinary powers that may be reflected in the costs orders that are made. The Court is given a powerful mechanism to exert greater control over the conduct of parties and their legal representatives, and thus over the process of civil litigation and the use of its own limited resources.

22     The Act does not merely reaffirm the existing inherent powers of the court but provides a powerful indication of the will of the Parliament about the values sought to be achieved by the way in which cases are managed in the courts and the balances that have to be struck….

23     It is therefore somewhat surprising that despite the length of time the Act has been in force, the scope of the sanction provisions in the Act for a failure to comply with the overarching obligations has been under-utilised.

….

25     The explanation for the under-utilisation of the provisions of the Act lies in part in a false perception that these provisions and the overarching obligations do not effect any material change to the Rules and the inherent jurisdiction of the Court…. The Act creates obligations which extend beyond those in the Rules and confers upon the courts a panoply of powers not found in the Rules.

26     The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.

27     Yet as we have observed, sanctions imposed for a breach of any overarching provisions have been a rarity at first instance. When no party invites the court to determine whether there has been a breach of the Act, there may be a judicial disinclination to embark upon such an own-motion inquiry for fear that inquiry as to a potential breach may be time consuming and may require the introduction of material that was not before the court as part of the proceeding. Such fears cannot relieve judges of their responsibilities….

You can probably still hear this judgment causing a hush in mega-firms the length of Collins Street (starting with their photocopying departments).

Some thoughts before you speak

If you haven’t sat through a thousand awful lectures, submissions and presentations you probably aren’t a real lawyer.

And if you have applied the unintended lessons of all that professional experience and training you are probably a dreadful public speaker as a consequence.

I was reminded of this when I attended a presentation this week on presentation skills. It was delivered to a room full of barristers by a non-lawyer, ex-teacher and freelance speechwriter, Ben Richards of Aticus.

Lecturing barristers on public speaking should be a tough gig. Richards made it look very easy – and he did so for a compelling 90 minutes without as much as a single note or Powerpoint slide.

I took copious notes. Here is a distillation.

  1. Delivering professional presentations and writing the seminar papers which are typically meant to accompany them are very different beasts. Treat them as such. Plan your paper’s content and its delivery as separate exercises.
  2. Australians often expect oral presentations to be bland at best. It is actually not that difficult to surprise on the upside.
  3. Why should any speaker see and hear his or her very own presentation for the first time simultaneously with the audience? Do at least some practice aloud beforehand. Also, warm up the vocal cords before you actually take the microphone.
  4. The first draft is never good enough. It will always need at least some rewriting and editing.
  5. Speak to the back of the room. There will never be anybody sitting in the front row anyway. Modulate tone and speed. Use vocal variation.
  6. The law is always prosaic. Be generous with the real-world stories and problems which make the legal issues you are discussing interesting.
  7. Also, start with your conclusions – if you keep your audience waiting its concentration might well be spent by the time you get to the end (where you were probably planning to put your conclusions).
  8. The presentation and the paper should not coincide. They are separate forms of communication which should not be fused.
  9. Don’t turn up late, flustered and then open with an apology and/or a plea to the floor for assistance with the operation of the PowerPoint projector.
  10. PowerPoint can only ever be a background visual aid. It is quite useless as a handout. It can be useful for diagrammatic explanations and/or key (and short!) pieces of text. [For a quick PowerPoint refresher see my post Slide into PowerPoint – a novice’s guide]
  11. The traditional 50 or 60-minute presentation format is problematic. It is usually a much better use of everybody’s time to divide the allotted hour evenly between two speakers and a Q & A session at the end.
  12. For the Q & A session be sure to plant some Dorothy Dixer questions – commonly at these events nobody wants to ask the first question but everybody wants to ask the second question.
  13. Doing a one-off presentation is terribly inefficient – wherever possible commoditise your talk. Its (complete or modified) reuse at subsequent events will improve both its efficiency for you as the speaker (through its delivery to more than a single audience) and also its quality as you are able to polish its content and delivery with practice.
  14. Preparation is key. Many brief preparation sessions over the course of weeks will usually be much more productive than a preparation marathon on the eve of your presentation.
  15. Preparation should start with three questions:
    1. Who is your audience?
    2. What is your objective?
    3. What are your key messages?
  16. You can rarely ask your actual audience in advance what they want to hear but you can usually speak to individuals who are potential audience members and/or have attended similar presentations. What do they know? What don’t they know? What more do they want to know? Ask them!
  17. Be realistic. Large books might well have been written on your topic. You (and your audience) have limited time. Don’t pretend that you can or should attempt to cover everything.
  18. Getting the structure right means putting the right ideas in the right sequence. Maybe start by putting the ideas on post-it notes, sticking them on a window and then rearranging them into an order that makes sense to you.
  19. Test the structure of your presentation by looking at its transitions. If the transitions don’t work it’s probably because the structure doesn’t.
  20. Never give a presentation without some ‘real-world’ connections. War stories are good. In their absence hypotheticals will suffice. Humour is good. So is fear-mongering with worst-case scenarios.
  21. Your opening should persuade the ambivalent audience that it should be interested. You can’t do this unless you sound interested yourself.
  22. Planning your opening is obvious (and important). Planning your closing is less obvious but just as important. The presentation that peters out with an apologetic murmur about the lateness of the hour or an abrupt full stop followed by an unexpected “Thank you” as you sit down is finishing on a bum note indeed.
  23. Speaking notes are a parachute – not a script. If you must have notes use keywords and phrases in large (say 30 point) type. Speaking notes which comprise full written sentences are inherently unsuitable to oral presentations. Using your 20-page seminar paper as your own speaking notes is an own goal accordingly..
  24. Audiences typically take away between 2% and 9% of a presentation’s content. Overcooking your content will compound the problem. Highlight the particular gems you want your listeners to retain.
  25. The average adult’s attention span is approximately 6 to 7 minutes. Harness this rather than being defeated by it. A 60-minute presentation on a monolithic topic is frequently doomed to failure from the outset. And yet it might fly if it is effectively broken up into, say, 8 to 10 chunks of approximately 6 minutes each about particular components of that very same substantive topic.
  26. Consider contriving your own interruptions as breaks to punctuate your presentation. Ideally each resulting segment will prompt a renewed attention span from the audience. These breaks in the presentation can be disguised as, for example, brief group discussion exercises or questions from the floor on a segment-by-segment basis.
  27. Each segment of your presentation should :
    1. Contain a statement of the “learning outcome” desired (eg why should we talk about X at all?);
    2. Highlight the substance of X which needs to be conveyed; and
    3. Conclude with a reflection on X by which the point of the exercise is very briefly recapped.
  28. In the Google age presenters who simply deliver publicly available information are wasting their own and their audiences’ time. Unless you are adding your own personal analysis, experiences, war stories, criticism, humour and/or editorials you are giving your audience nothing positive to remember you by. (Indeed, you might be giving them positive reasons to forget you.)
  29. Don’t run over time. It antagonizes audiences, subsequent speakers and the catering staff. Most of all it looks chaotic.

And on that last point Richards concluded – precisely an hour and a half after he told us he was going to speak for 90 minutes.

If only it was simple as people in Richards’ league make it look.

WA court bins stat demands, orders indemnity costs and calls the cops

Some obscure judgments deserve a wider audience.

Master Sanderson of the Western Australia Supreme Court delivered one such gem in April in Rohanna Pty Ltd v Nu-Steel Homes Adelaide Pty Ltd [2013] WASC 109.

Some scene-setting first.

In Christmas week 2012 the plaintiff received two statutory demands from the defendant. The parties had never had any prior contact with each other and yet the demands totalled almost $220,000. Both stat demands were ultimately set aside by Master Sanderson. In the interim the defendant was represented in correspondence by a South Australian solicitor who did not file a formal appearance (Mr Nicholls) and in Court by a non-lawyer (Mr Pearse). Mr Nicholls had offered to settle the matter on the basis that the plaintiff pay the defendant’s costs of $25,000. He also remarked upon the need to advertise any winding up application which might follow if the plaintiff didn’t stump up that loot.

Master Sanderson was scathing. Here are some highlights from a stinging judgment.

11.   In further support of its application the plaintiff filed a second affidavit …. The purpose of this affidavit was to demonstrate the solvency of the plaintiff. A mere glance at this affidavit would be enough to convince even the economically illiterate the plaintiff was solvent. Indeed it shows the plaintiff as a massively successful commercial enterprise. But that was not enough for Mr McNamara.

 

       ….

 

17.   All of these matters can then be aggregated. First, the defendant served the statutory demands without any prior consultation with the plaintiff. If it had a genuine belief there was a debt owed it would have been reasonable to write to the plaintiff, make a claim and explain the basis of that claim. That was not done. Instead the demands were sent by post and arrived on the Thursday before Christmas. If ever there was a time when it was difficult to deal expeditiously with a demand which required action within 21 days, that was it.

 

 ….

 

20.   Fourthly, faced with clear evidence of the solvency of the plaintiff the defendant determined to press on. No reasonable party properly advised would have done so.

 

21.   Fifthly, the correspondence suggests an attempt to embarrass the plaintiff by advertising the fact of a winding up application. There was no need to refer to the advertising of a winding up application in the way Mr McNamara did. The letter strongly suggests the defendant was looking to force the plaintiff into a compromise to serve its own purposes.

 

22.  Sixthly, the defendant actually issued a winding up application. This was done prior to the application to set aside the demands being heard. It must have been clear there was a live issue as to whether the application to restrain the defendant would succeed. … Once again it looks as though the defendant was attempting to pressure the plaintiff.

 

23.   Seventhly, no appearance to the application to set aside the demands was ever lodged. Mr McNamara in his correspondence said he had been retained by the defendant. As late as 28 February 2013 he wrote to the plaintiff’s solicitors on behalf of the defendant. At no time did Mr McNamara indicate his instructions had been terminated and at no time did he give any indication he would not appear at the hearing of the matter on 7 March 2013. Perhaps the defendant was concerned if it did enter an appearance a costs order might be made against it. Or perhaps there was some other reason no appearance was entered. But it does suggest the defendant never took seriously the prospect it could successfully resist the plaintiff’s application.

 

24.   Finally, there is the offer to settle on payment of $25,000 for costs. It may be that Mr McNamara is one of South Australia’s leading corporate lawyers. If that is so, this case does not represent his finest hour. But even assuming high competence on the part of Mr McNamara there is no possible way the defendant’s costs could have amounted to $25,000. No appearance was filed, no affidavits in opposition to the application were lodged, it would appear submissions to be made on behalf of the defendant were drawn by Mr Pearse and the totality of Mr McNamara’s involvement was three or four letters. Really this demand for ‘costs’ is no such thing. It was tantamount to extortion.

 

25.   … This is a case where indemnity costs should be awarded and the only question is who should pay those costs. Mr Pearse will have 14 days from the publication of these reasons to make submissions as to why he should not pay the costs personally.

 

26.   I intend to refer these reasons to the Western Australian Police Service for such action as they deem necessary in relation to Mr Pearse. I will also refer a copy of these reasons to the authorities in South Australia who regulate the legal profession to take such action as they deem appropriate in relation to Mr McNamara.

 

Lessons from this case? Many.

But the very first that occurs to me is that the Wild West’s legal system might have been unfairly maligned by the late Robert Hughes (as recorded in my post here on his passing).

Clayton Utz and the lingering smell of smoke

Are you a commercial litigator with an interest in client confidentiality and conflicts of interest? Or in schadenfreude?

Then you will probably appreciate Justice Elizabeth Hollingworth’s decision last month in Dale v Clayton Utz (No 2) [2013] VSC 54

A quick refresher before the summary.

Allan Myers QC and Clayton Utz both have singular reputations among Australian lawyers.

Myers is a top shelf commercial silk and philanthropist. His fame, prestige and profile are surely matched by few other practising lawyers in the nation. Apart from that, in his spare time he has dabbled in investments sufficiently to acquire, among other things, a Polish brewery, vast tracts of outback Australia and an entry in BRW’s Richest 200 list.

Clayton Utz’s reputation is more enigmatic. It is a mega firm employing hundreds of no-doubt talented and principled lawyers. But in the public mind it is arguably still best known for its murky role defending Big Tobacco against a claim by a dying ex-smoker, Mrs Rolah McCabe in 2002.

Mrs McCabe won at first instance (see decision here) after the cigarette company’s defence was struck out. The trial judge concluded, among other things, that through its “document retention policy”, the process of discovery in the case had been subverted by the defendant and its solicitors (Clayton Utz) with the deliberate intention of denying a fair trial to the plaintiff.

That decision was reversed by the Court of Appeal here but Clayton’s Utz’s judicial vindication was undermined by the PR shellacking The Age (and other media) gave Clutz and its client in stories like this and this.

How did the The Age get its material?

We now know that some of The Age’s information was leaked to it in 2006 by one time Clayton Utz litigation partner (and also 2004 Law Institute of Victoria president) Chris Dale.

For reasons which the Supreme Court might yet find were or were not related to the McCabe case, Clayton Utz had expelled Dale from its partnership a year earlier in October 2005.

Almost six years later, in September 2011, Dale sued Clayton Utz for breach of the partnership agreement.

Which brings us back to the Victorian Supreme Court’s recent decision.

Clutz filed its defence against Dale in January 2012. That defence was signed by Allan Myers QC.

Dale promptly objected to Myers’ involvement. He said that Myers had advised him in relation to his dealings with the Clutz partnership during 2004 and 2005 and accordingly Myers should not act against him now.

Clutz held its ground so Dale sought an injunction to prevent Myers acting further in the case.

Last month Dale won that argument and Myers exited the proceeding. (The wider dispute between Dale and the partnership remains to be determined.)

Justice Hollingworth’s 40 page judgment is a good read. There is something in it for you whether you are in the mood for a John Grisham-style legal who-dunnit or some pointers on how not to draw affidavits on this type of issue, lawyers’ obligations to parties they have formerly (and possibly informally as well) advised, concepts of ‘contractual’ and ‘consensual’ retainers and much else besides.

But the most confronting topic for mine is the treatment of obligations towards former clients (including people who might never have been ‘clients’ in a formal sense).

In short, Dale swore on affidavit and in cross-examination that as his relationship with the Clutz partnership frayed in 2004 and 2005 he sought and obtained Myers’ oral advice.

Myers denied this on affidavit and was not cross-examined.

Dale’s version (at least as to a single conference of about one hour’s duration in 2004) was preferred by Hollingworth J thus –

33     In so far as Mr Myers states … that he “was not retained” by Mr Dale, I read that as no more than a statement of his personal belief that he was not retained. Mr Myers cannot give evidence as to whether he was in fact retained. Whether or not there was a retainer is a legal matter for the court to determine, from the objective facts, and not from the subjective beliefs of the lawyer or the party alleging to have retained the lawyer.

….

59     In so far as Mr Myers states … that he was not asked to and did not provide legal advice to Mr Dale, given that he has no memory of this conversation at all, I read that as no more than a statement of his personal belief … that he was not retained to provide legal advice.

 ….

135   I accept that Mr Myers did not believe he was being professionally retained. But Mr Myers did not say to Mr Dale that he was seeing him other than in his capacity as senior counsel, even though the discussion lasted for about an hour and went into some detail about Mr Dale’s current predicament. Someone in Mr Myers’ position could easily have taken steps to make it clear that he was not acting in a professional capacity.

….

Conclusion

176   I propose to grant an injunction to restrain Clayton Utz from continuing to engage Mr Myers in this proceeding. Such an injunction would be justified by any of the following findings:

(a)     That a professional relationship existed between Mr Dale and Mr Myers in relation to the August 2004 meeting;

(b)     Further and alternatively, that Mr Dale communicated confidential information to Mr Dale [sic.— Myers?] in the August 2004 meeting, and there is a real and sensible possibility of a revival of recollection, about matters which are of critical importance in this proceeding;

(c)      Further and alternatively, because a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that to occur.

The bottom line for Clayton Utz? The firm needs a new silk in for its continuing stoush with Dale.

The bottom line for the rest of us? An hour’s discussion about which you have absolutely no memory or record can be enough nine years later to have you ejected from acting in litigation against the other party to that forgotten discussion.

For the record:

  • Hollingworth J stated (at para 121) “By accepting Mr Dale’s account, I am not in any way suggesting that Mr Myers is not a truthful witness”.
  • In late 2001 or early 2002 I acted for Mrs Rolah McCabe for approximately 48 hours in her case against Clayton Utz’s then-client British and American Tobacco Australia Services Pty Ltd.

Tripping up on the slip rule

“Since the abolition of capital punishment there is now no mistake by a lawyer in Australia that cannot be effectively reversed.”

Or so I was told long ago after a bad day in the office as an articled clerk.

My supervising partner had in mind the slip rule.

The slip rule is the rule that allows courts to correct minor glitches in their own judgments and orders without the trouble and expense of an appellate court’s intervention.

The slip rule is within courts’ inherent jurisdiction but it is also succinctly expressed in most courts’ own rules — see for example Federal Court rule 39.05 and, in Victoria, Supreme Court rule 36.07; Magistrates’ Court rule 36.08 and VCAT Act s 119.

But the slip rule has its limits.

I was reminded of this over the Christmas break by a Retail Tenancies List decision – Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2012] VCAT 1908.

In late 2011 the tenant-applicant won an order totalling almost $245,000 against its landlord – see Versus (Aus) Pty Ltd v ANH Nominees Pty Ltd [2011] VCAT 2273. In that case, after a 10-day hearing and a 62-page judgment, VCAT Vice-President Judge Lacava found that the landlord had failed to take reasonable steps to stop or prevent disruption to the tenant’s trading caused by, inter alia, a neighbour’s renovations.

The landlord duly paid up.

Almost a year later the tenant decided to go back to the well. It applied to VCAT under the slip rule for a further order which would have upped the original award by almost $96,000.

The application had three prongs.

Two were swiftly dealt with. Judge Lacava found both to require a total recalculation of damages in circumstances where the errors complained of and their consequences were “not readily identifiable.”

The third limb of the application was starker.

The landlord conceded that a typographical error (yes – a humble typo) in the original reasons had effectively cost the tenant $16,235. But it would not concede the slip rule application.

Quite right too ruled Judge Lacava.

He cited L Shaddock & Associates v City of Parramatta [1983] 151 CLR 590 to the effect that courts have a discretion when dealing with slip rule applications.

In my view, if there was an error capable of being corrected under s. 119 [of the VCAT Act dealing with slip rule applications], it ought to have been identified by the applicant and its accountants by the end of February 2012 at the latest and an application then made. That was not done. In my judgment, the delay in bringing this application for correction is unexplained and is too long. It is important that litigation be brought to an end. In this case, the respondent having promptly paid the amount of damages, it would be both inexpedient and inequitable for me to make the orders sought by the applicant in its further application dated 20 September 2012.

For these reasons, the applicant’s further application is dismissed.

The lessons?

Three occur to me:

  • Try to get it right the first time;
  • Don’t hang about when you (or the judge’s typist) muck it up; and
  • Don’t believe everything supervising partners tell their underlings.

(Mainly) keeping a sugar daddy’s confidences

Quote

Geoffrey Edelsten

Geoffrey Edelsten (Photo credit: Wikipedia)

Are confidentiality clauses worth the paper they are written on?
Between parties of good will they are unnecessary. Between parties of ill will their enforcement is usually fraught. The genie secret can escape the confidentiality bottle too easily and, once loose, can seldom be ordered by any court entirely back into that bottle.
Dr Geoffrey Edelsten was reminded of this last week when he scored a dubious victory in Norman South Pty Ltd and Geoffrey Edelsten v da Silva [2012] VSC 477.
Australia’s most famous struck off GP ‘met’ the young, female defendant, Ms da Silva, at www.sugardaddyforme.com . (Go on — have a peek at a very strange world which promotes itself as “a dating site that promises you the man – and the bank account – of your dreams!”) Our star-crossed litigants then met in person, in Florida, one weekend in March this year.
Money subsequently changed hands. On the Edelsten version, that money was a $5000 loan from his company (the first plaintiff) to the defendant. He said the loan was governed by a written agreement which included a wide-reaching confidentiality clause.
Ms da Silva admitted receiving the $5000 but initially told the court it was a gift. Later in the trial she characterised the payment as a loan without any confidentiality obligations attaching to it. She said certain emails in evidence that appeared to contradict her were forgeries.
In a contest between two extremely unimpressive witnesses Edelsten was preferred to Ms da Silva.
What else transpired between the pair? We will probably never know because Ms da Silva is now injuncted from, among other things, persisting with the disclosures she had started making to a Herald Sun reporter.
It was those disclosures which apparently prompted Edelsten to seek a cocktail of orders against da Silva including for repayment of the $5000 loan, damages, injunctions to prevent further disclosures and a non-publication order under s 18(1)(c) of the Supreme Court Act in respect of the entire proceeding.
Edelsten succeeded on the loan claim and the injunctions (because of the confidentiality clause rather than breach of confidence principles) he failed to get damages and he got only a partial non-publication order.
Most successful litigants enjoy public vindication but Edelsten would probably have appreciated private vindication more.
Instead Justice David Beach suppressed “information derived from the proceeding that would disclose or further disclose the substance of any dealings” between the two main players but expressly exempted his 14 page judgment from that order.
Hence the judge’s scathing assessment of the main witnesses’ testimony can be shared with the world. Here (minus the footnotes) are some highlights from a stinging judgment:

1 A little over 23 years ago, Brooking J commenced a judgment with the statement “Titus Oates was the greatest perjurer that ever lived”.  Self-evidently, his Honour was not the trial judge in the present proceeding.
….
9 …. one of the problems with this proceeding was that in respect of a significant number of the emails, each side had different versions of the relevant email. Each side accused the other of fraud. Specifically, each party made accusations that various emails passing between them had been fraudulently altered.
….
15 ….most of the evidence given by the defendant was demonstrably false and could not be believed.
16 However, Dr Edelsten was no more an impressive witness than Ms da Silva. The evidence disclosed that in his dealings with Ms da Silva he lied to her on a number of occasions. Further, much of Dr Edelsten’s evidence was simply unbelievable when one had regard to the whole of the evidence. Specifically, Dr Edelsten’s evidence as to being largely (if not wholly) motivated by altruism or charity in his dealings with the … defendant must be rejected. Additionally, much of Dr Edelsten’s evidence (and particularly the evidence I have referred to in this paragraph) is inherently unlikely when one looks at the written record of the communications passing between him and the defendant.
17 While, in some circumstances, and depending upon the demeanour of the particular witness (or other relevant matters), inherently unlikely evidence might nevertheless be accepted, nothing about Dr Edelsten’s appearance in the witness box or any of the evidence in this case led me to conclude that I should accept the evidence given by him (and to which I have referred) in the face of the more likely true position as disclosed in the emails tendered on his behalf. Specifically, the way in which Dr Edelsten gave evidence was unsatisfactory. On a number of occasions, there were inappropriately long pauses before an answer was given to a straightforward question that should have been capable of a ready answer. From time to time, Dr Edelsten appeared to be contemplating which of a selection of answers might prove least embarrassing or least destructive to his case. Further, Dr Edelsten’s willingness to deny seeing the contents of some attachments to a particular email from the defendant did not assist his credibility. Finally, in respect of too many matters in cross-examination, Dr Edelsten was content, all too readily, to say that he could not recall the matter inquired of, before having to, somewhat grudgingly, acknowledge its existence when taken to a specific email.
18 In summary, I found both Dr Edelsten and Ms da Silva to be unsatisfactory witnesses. Both were prepared to mislead me in respect of any matter that they thought they could get away with. Each was prepared to be truthful only if it did not otherwise embarrass them or harm their case. The one piece of evidence that could confidently be accepted from each of them is when each of them said that, in respect of certain matters, the other was being untruthful. That said, there was the occasional vignette of truth. Further, in fairness to Dr Edelsten and in the context of this case, it might be said that it was at least to his credit that he did not falsify any of the relevant documents.
….
40 In my view, it is necessary, so as not to prejudice the administration of justice, to make a non-publication order prohibiting the publication of any part of this proceeding that would disclose or further disclose the substance of the dealings to date between the second plaintiff and the defendant, including any emails, text messages or any other form of communication passing between them. However, I should say for the sake of completeness that such a non-publication order does not prevent the publication of this judgment.