Charge and countercharge of overcharging in Sydney

Is the expression “excessive legal costs” tautological?

Cynics might say so but not our regulators.

Section 4.4.4(b) of the Legal Profession Act (Vic) makes the “charging of excessive legal costs in connection with the practice of law” (surely a further tautology) conduct capable of constituting either ‘unsatisfactory professional conduct’ or ‘professional misconduct’.

New South Wales’ equivalent legislation saw former high-flying personal injuries soli Russell Keddie struck off last month for just such professional misconduct.

According to the Sydney Morning Herald account here Keddie’s bill of $819,000 to his paraplegic client was $215,00 too high.

Keddie is unlikely to miss his ticket – he retired before he was rubbed out.

Perhaps with a view to the many similar claims against him and his former firm, he also declared himself bankrupt last month.

Keddie’s sagging public reputation is unlikely to be assisted by reports (like further SMH yarns here and here) that before his bankruptcy he transferred his half share in two properties worth a combined $6 million to his wife for – you guessed it – a single dollar each.

The SMH has given the Keddies story a lot of air since 2008 but in Victoria only readers of the Oz are likely to have heard of it.

Keddie’s eponymous firm was once NSW’s leading personal injury plaintiffs’firm. Slater & Gordon took it over for a reported $32 million in 2010. By then Keddies had been been already in strife with NSW’s Legal Services Commissioner for at least 4 years.

Radio National revisited the Keddies saga in Background Briefing last Sunday, 22 July 2012 – audio here and transcript here.

Some highlights from the ABC’s retelling:

  • Aggrieved Keddies clients have already racked up approximately $4 million in judgments against the firm’s three former partners;
  • The ABC speculates that the total overcharging judgments might eventually top $11 million;
  • Enforcement of those judgments is likely to be problematic. Of the three ex-Keddies partners sued, one is already bankrupt and the other two have reportedly had their assets frozen;
  • The overcharging claims against Keddies have been spear-headed by solicitor Stephen Firth with the apparent assistance of some ex-Keddies Deep Throat(s);
  • Coincidentally, Stephen Firth is himself defending several overcharging claims. The plaintiffs’ solicitor in those cases? None other than ex-Keddies partner (and defendant to many Firth-issued overcharging writs) Tony Barakat.

Firth has been forthright in his pursuit of Keddies – see his website here where he boasts of 11 wins totalling $1.5 million in Keddies cases for the month of April alone.

And Barakat is not bashful either. See his comments to The Australian here about the claims against Firth.

Only in Sin City?

 

 

Safeguard your Mareva injunction with a PPSA registration

I have just put the finishing touches to a seminar paper I am delivering this week on the Personal Property Securities Act 2009.

My paper is not as unwieldy and dry as the PPS Act itself (is anything?) but I wouldn’t call it sexy either. I will post it on its own discrete (ie separately tabbed) page in this blog after the seminar.

For an extremely short synopsis of the PPS Act generally see my post of 10 February 2012 (which you can access by simply following the date prompts below the mugshot in the right-hand margin of this page.)

But let me take you straight to what might be the highlight for general commercial litigators with Mareva-type injunctions in their armoury (and they should be in every armoury).

Once Mareva orders (aka ‘asset preservation orders’ and ‘freezing orders’) and some analogous orders are obtained from any Australian court or tribunal it seems they can be ‘perfected’ by registration on the PPS Register.

Such registration will effectively advertise the existence of your client’s Mareva injunction to the world at large. That ‘perfection’, among other things, should constructively warn off third parties who might otherwise purchase or lend against the property in breach of a court order restraining the use and/or disposal of that property.

This new tool lies buried in reg 5.3(c) of the PPS Regulations. I am not aware of it having been used since the PPSA regime started on 30 January 2012.

Is this history waiting to be made or has it been made already?

Anyone?

Is your enemy’s enemy your friend? Proportionate liability cases and the rule in Jones v Dunkel

The rule in Jones v Dunkel permits a court to draw an inference at trial from a party’s unexplained failure to call a witness logically within that party’s camp. The permissible inference is that the absent witness’s evidence, if led, would not have assisted that witness’s camp.

The rule is not new.  It actually predates the case from which it takes its name – Jones v Dunkel (1959) 101 CLR 298.

Particularly since the commencement in 2004 of Part IVAA of the Wrongs Act (Vic) and its federal equivalents, apportionable liability cases have become commonplace. This has complicated the application of the Jones v Dunkel rule.

Co-defendants in commerical litigation now typically pitch their case at two levels:

  • firstly, they will argue in unison that the plaintiff’s case should fail;
  • secondly, as a fallback, they will argue against each other that, if the plaintiff succeeds, the other co-defendant(s) should wear all, or most, of the resulting liability.

These issues arose (on the pleadings at least) in Goddard Elliott v Fritsch [2012] VSC 87 (see my post below of 29 March 2012 for a brief overview of the case’s facts and issues).

There a disgruntled client sued his solicitors, plus the silk and senior junior retained on his behalf.

He alleged, inter alia, negligence against each of them. Both barristers settled but the solicitors fought the case to verdict. The barristers remained as nominal parties in the trial for the purposes of the apportionment issues.

In defending the negligence claim the solicitors did not call evidence from the silk in support of their case. But neither did the client call evidence from that silk in support of his case.

The client then asked the court to draw an adverse inference against the solicitors in accordance with the rule in Jones v Dunkel.

‘But the silk is an independent party and not within our camp’, replied the solicitors.

Bell J disagreed. Here are some extracts taken from between para 32 and 49 of the 1136 paragraph judgment:

“In the negligence and other claims which have been made, and in the factual basis of what has been alleged, the nature of that case puts all of the defendants by counterclaim in the one camp….

“… It was within the power of [the solicitors] to call [the silk] as a witness in relation to important issues of fact in the case, particularly [the client’s] mental capacity and what occurred when the proceeding in the Family Court was settled…

“As [the silk) was in [the solicitors’ firm’s] camp, it was reasonably to be expected that it would call him to give evidence on its behalf. For reasons which were not explained, it failed to do so.

“The unexplained failure of [the solicitors] to call [the silk] gives rise to an inference that his evidence would not have assisted [the solicitors’] case.  That inference may be taken into account against [the solicitors] in evaluating the whole of the evidence of the case, including the evidence of [the client]. By reason of [the solicitors’] failure to call [the silk] I might more readily resolve any doubts I have about the reliability of [the client’s] evidence.

Conclusion

This ruling illustrates a conundrum likely to arise in many (perhaps even most?) multi-party cases where an apportionment of liability as between defendants (and/or joined parties) is sought.

For each co-defendant, the plaintiff will typically be the primary adversary but not the only adversary. Typically, each of the co-defendants will also be trying to shunt maximum liability on to each other’s plates. In that sense, every other ‘camp’ in the litigation will be an enemy camp.

But, for the purposes of the rule in Jones v Dunkell, your opposition’s opposition might be considered (by the Court at least) to be your friend.  The co-defendant trying to minimise his liability at your expense might very well be considered to have been within your ‘camp’ in the event of your unexplained failure to call evidence from that person.

But dare you call a hostile co-defendant to give evidence on your behalf?

Therein lies a post for another day…

Courage at all costs? Lawyers reminded of personal exposure in Centro

Australia’s most famous English silk, Geoffrey Robertson, once rhetorically rolled his eyes at the concept of fearless lawyers in Anglo-Australian law.

He was all for the idea but his point was that a brave lawyer, here or in London, braves mainly the risk of occasional unkind words from the bench and the media.

For truly courageous lawyers, he said, look to places like Columbia.

There, some lawyers’ career alternatives boil down to either a safe and very comfortable life for themselves and their families, subsidised by the local drug lords, or a more principled career on a very modest government income which, among other things, is hopelessly inadequate to guard them and their families from the real possibility of kidnapping or assassination.

Columbia remains a long way off but Robertson QC’s disparagement of legal courage here might require some updating after Justice Michelle Gordon’s reported comments in the Centro case this week.

The case is in its seventh week in the Federal Court. There are hundreds of millions of dollars at stake. The auditors were always in the gun. Now their counsel and solicitors King & Wood Mallesons might be too.

See the Fairfax reports here and here.

A judge’s power to order costs against the lawyers is not in doubt (see for example my post here on Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 and the Allen Arthur Robinson post on a similar recent case here). But such costs orders typically involve after-the-event criticism of the lawyers from the bench.

Media reports of the Centro case suggest provisional criticism from the bench of the lawyers’ anticipated performance.

Assuming these reports are correct, what is a brace of silks and senior juniors and their über firm instructing solicitors to do?

While it would hardly look courageous, they could turn tail and run. Abandoning a line of argument in defiance of a client’s instructions is a real option in some cases. While obviously problematic (not least from the costs angle) it can be justified in the right circumstances by the lawyers’ overarching obligations under, among other things, the Federal Court Act, the Civil Dispute Resolution Act (Cth) and Victoria’s Civil Procedure Act.

Another option is persevering in the teeth of incoming judicial flak and attempting to win over an apparently very dubious judge. (although they have reportedly described their argument as “not without foundation” which sounds a mite trepidatious.)

But whichever course the auditors’ representatives now choose, they will probably require more guts than Robertson QC thought was usually required of Anglo and Australian lawyers.

This a nine-cornered stoush (yes, nine!) and costs will surely be running at several Portsea beach houses per week.

Stay tuned.

PPSA in 500 words

The Commonwealth Personal Property Securities Act 2009 came into operation on 30 January 2012. It comprises 300 + pages (never mind the regulations) and is not light reading.

Can it be summarized in just two A4 pages? Let’s try.

The PPSR Act establishes something that might be crudely likened to a Torrens title registration scheme for tangible and intangible personal property. It is modeled on existing legislation in New Zealand and Saskatchewan.

“Personal property” does not mean domestic or consumer property (although that is within its scope too). “Personal” means personal as opposed to real property.  Most businesses will be affected (For example who has title to the hire-purchased photocopier in a solicitor’s office if the soli goes broke? What if the soli stays solvent and the photocopier supplier goes bust?)

The registration system is national, internet-based, administered by the Insolvency & Trustee Service of Australia (ITSA) and accessible 24/7.

In insolvency situations the register will generally determine the title of the liquidator / trustee in bankruptcy to personal property in the possession of the insolvent company / individual that might otherwise be claimed by a financier, unpaid supplier etc.

Example:

Say ABC Company goes into liquidation while in possession of:

  • vehicles it has leased from X bank;
  • widgets from Y supplier which have not yet been paid for and are subject to retention of title clauses; and
  • an entire business ABC purchased from Z on vendor terms and on which there are still instalments outstanding.

In this example X, Y and Z would formerly probably have had good title as against the liquidator to their particular property in ABC Company’s possession. But no longer. Under the new regime the liquidator will likely be entitled to seize and sell each of these assets as part of ABC Company’s insolvent estate unless the rival claimants have registered a security interest in them.

Registration of a given security interest will cost $5 a time.

Failure to make that $5 investment might cost unlucky punters literally millions – see Waller v New Zealand Bloodstock Limited [2005] NZCA 254; [2006] 3 NZLR 629. In that case the owners of a $2 million racehorse leased it to a stud. The stud’s financier repossessed the stud (and with it, the horse). The horse’s owners had not registered their security interest in their  horse under New Zealand’s equivalent of the Australian legislation. They lost their $2 million chaff-burner to the liquidator as a result.

Now consider the lawyers –

  • Clients’ standard terms of trade agreements might require revision. Previously effective retention of title clauses in supply agreements might fail under the new regime unless supported by registration of the resulting security interest;
  • Clients who are not advised of the new regime by their lawyers are likely to be gravely miffed if they lose their assets to their customer’s liquidators as a consequence;
  • Professional negligence claims against lawyers will inevitably result – see for example K-Auto Trading NZ v McGurie [2008] NZHC 94

After a remarkably long gestation the Personal Property Security Act 2009 is now operational law. The new regime includes a two year introductory transition period (but why defer getting things right until 2014?)

Paul Duggan

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Paul Duggan is a commercial litigation barrister based in Melbourne, Australia.

Since 1996 he has advised and appeared in most types of business-to-business and business-to-customer disputes – commercial and domestic building matters, commercial and retail leasing disputes, insolvencies, franchises, partnerships, insurance, professional negligence, sales of land, Corporation Act matters and trade practices disputes to name a few. Although Paul has represented governments, major public companies, insurers, Lloyds syndicates and private individuals his clients are predominantly small and medium enterprises contemplating or engaged in litigation in the Victorian Supreme Court, County Court or VCAT.

Paul also practises in the federal jurisdictions and interstate.

Paul’s clerk is Gordon & Jackson.

Liability limited by a scheme approved under the Professional Standards Act 2003.