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Sarah Bruhn M. Crim (Melb), LLB. Sarah welcomes briefs to appear, advise and draw up documents for all court and tribunal matters. For the past 6½ years Sarah was the Criminal Division Legal Officer with the Supreme Court of Victoria and provided legal assistance and support to the judges sitting in the Criminal Division in both administrative law and criminal law matters. Prior to working at the Supreme Court Sarah practised as a solicitor in a wide range of matters including anti-discrimination law, guardianship and administration law and commercial litigation.

Nathan McOmish LLB, B.Com. Nathan’s interest in equity and trusts has led him to the development of a practice in wills and estates and commercial law. Nathan offers a unique mix of legal and commercial skills, with significant experience working in non-legal roles. Prior to joining the Bar, Nathan was Managing Director of Kristeva Consulting, advising leading Australian corporations and government departments on complex projects (typically $10-$250 million) including mergers, acquisitions, capital raisings, strategy, business turnarounds and budget program rollouts.      

In a recent case Justice Gray of the Federal Court of Australia found in favour of Professor Judith Bessant who challenged the action of her employer in declaring her redundant. She was represented by Joel Fetter who successfully contended that the redundancy declaration was based on improper and irrelevant grounds and consequently breached the provisions of the Fair Work Act 2009.

TheAge.com.au has reported on this and the judgment can be read on the AustLII website.

The 4^th Annual Pro Bono Awards was held on Tuesday 14 May in the Supreme Court Library.  Leana Papaelia, list member, received the Daniel Pollack Readers Award for barristers who have completed the Readers course within the previous 12 months. Leana was a solicitor at Mallesons Stephen Jaques and the Victorian Equal Opportunity and Human Rights Commission. Particularly noteworthy, since signing the bar roll in 2012, is Leana’s work in a tenancy matter that involved a single mother with two children who had been evicted from public housing and was facing homelessness on her release from prison. Her work meant the Office of Housing discontinued eviction proceedings and helped to ensure a very vulnerable public housing tenant and her children were provided with secure public housing.

For more information on the 4^th Annual Pro Bono Awards see the Victorian Bar News

theage.com.au A charity run by leading Italian-Australian figures funnelled millions of dollars into a secretive organisation without explanation to the charity's membership or the wider Italian community. [...] Read more

melbournemediator.wordpress.com In nearly every legal dispute there will be an element of emotion, and often high emotion. This is true regardless of the subject matter of the dispute. While family disputes are renowned for their high emotion and high tension, the same can also be said for commercial disputes, particularly where large sums of money or a company’s reputation or that of a related person may be at risk. Parties and mediators entering into the mediation process should not underestimate the role of emotions in the resolution of their dispute and the potential barrier emotion may form to the satisfactory resolution of the dispute.

Emotions can make normally rational people behave in irrational, counter-intuitive and nonsensical ways.  Even where a person is aware of their behaviour, they may be powerless to exercise control over it. This is particularly so in the family law context, where the dispute may involve the custody or visitation of a child post-separation. Clearly, a situation like this will generate a strong emotional response, however even situations where there is less at risk can do so. Often, strong emotional reactions in mediation occur, not because of what is at risk, or the other party’s behaviour, but from an individual’s perception of being under attack.

The traditional legalistic approach assumes that people will behave in a ‘reasonable’ manner and abide by legal rules and community standards of behaviour. The ‘reasonable person’ is the yardstick by which we measure a person’s actions. And yet, emotions often cause people to act in a manner which isn’t at all reasonable, and may not conform to community standards of behaviour. The reality is that, especially when faced with high-tension situations such as legal disputes, many people will not be able to supress their emotions and behave ‘reasonably’.

This inability to control one’s emotions may have a negative impact, not only on the outcome of the mediation, but also on future relationships. In a commercial context, parties may not only find it difficult to resolve the immediate issue, but the ‘bad blood’ between them will make it less likely that they will cooperate in the future. In terms of family disputes, children can be caught in the middle of the dispute being waged by their parents. All too easily, parental squabbling can overshadow the impact that the dispute is having on the child. Children can experience feelings of neglect, grief, guilt, uncertainty, rage and hopelessness, which can have a lasting impact on their development and how they respond to future relationships.

Nearly all situations will involve some emotional response, even if we are not conscious of it. Whilst many people will regain rationality and perspective with time, others will not be able to do so. This can seriously hinder the resolution process. In some cases, this can cripple a business. Emotional responses are automatic and natural when a person encounters stressful external stimuli.  While it is possible to control one’s emotions, it is not possible to prevent them from arising. It is important to be sensitive to the parties’ emotions, and provide support in understanding and controlling them. Failure to do so can derail the resolution process and result in lasting damage to the parties, whether emotionally, financially or otherwise. 

melbournemediator.wordpress.com Over the past twenty years, there has been a significant and lasting shift away from the court-based resolution of family disputes. Many times court will not be the appropriate forum for dealing with family disputes, given the high emotion and the things “at stake” in such disputes. For example, decisions on parenting arrangements with respect to the children of the relationship can have a profound effect on the whole family that may last for a considerable time. Arguably, the adversarial court system is ill-equipped to handle these kinds of disputes as it removes control over the outcome of the dispute from the family members. Fortunately, the Family Law Act 1975 goes quite some way to alleviating this problem by corralling a couple in dispute over parenting matters to mediation prior to litigation commencing.

While there are many benefits of this shift in focus, there are also some matters in the current family dispute resolution environment which may cause concern if not managed appropriately:

• There is almost certain to be ongoing tension between the manner in which parenting and financial issues are dealt with. Co-parenting is now much more common than in the past, not the least of which because of the presumption in the Family Law Act of equal shared parental responsibility. Whilst the financial and emotional aspects of a relationship are generally settled “once and for all” following the dissolution of the relationship, parenting commitments will continue even after the child has “grown up”. Notably, this disconnect is felt acutely by women, who are often the primary caregivers.
• Co-parenting may also give rise to conflict in other situations, for example where one parent wishes to relocate to another city, state or country.

pauldugganbarrister.com 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.

pauldugganbarrister.com No April Fool’s Day jokes please.

Effective 1 April 2013 the Victorian Supreme Court has a new costs regime.

The highlights:

• The ‘party and party basis’ (by which most Supreme Court cost bills have historically been taxed) is axed.
• Henceforth, costs orders will generally be taxed on the more generous ‘solicitor and client basis’ (that is “all costs reasonably incurred and of reasonable amount”) although that yardstick is to be renamed the ‘standard basis.’
• Costs on an indemnity basis remain available.
• Solicitors’ time on the standard basis will be claimable in 6 minute units at the rate of $36 + GST per unit (ie $360 + GST per hour).
• Unless otherwise ordered, the maximum daily allowance for counsel is $5000 + GST per day for juniors and $7500 + GST per day for silks.
• Photocopying (currently allowable at a whopping $2.30 per page) becomes discretionary but is likely to be allowed in the Costs Court at 22 cents per printed side of page.

For a more detailed explanation of the new costs regime see:

• The new Order 63 itself in the rules here from its commencement on 1 April 2013;
• Practice Note No 1 of 2013; and
• a two-page explanatory memorandum from the Supreme Court which I am happy to forward to anyone who emails me at paulduggan@vicbar.com.au.

What do the changes mean?

It is probably good news for successful litigants. Any standard costs order in their favour should now translate into more coin in their pocket than was formerly likely under the more austere party and party basis.

It is correspondingly bad news for unsuccessful litigants (by which I include others such as winners who fail to beat their opponents’ Calderbank offers or Offers of Compromise).

And it’s likely business as usual for those practitioners of the dark arts of costs consulting.