Removal from the roll for professional misconduct: a uniform law?

Does the application of uniform legislation in two different jurisdictions obtain uniform outcomes between the two jurisdictions? In a system under legislation starting with the word “Uniform”, in the one common law of Australia, this would be expected. But for lawyers who engage in professional misconduct, it might just be better (for them) to engage …

Chorley abolished

The High Court has abolished the much-maligned so-called Chorley exception. Solicitors are no longer entitled to recover costs in respect of their time spent on their own litigation: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29. Background The law with respect to the power to award costs, as generally understood until Pentelow, was as …

Some interesting things

For something a bit different, this post concerns a few interesting law-related things rather than anything substantive. The Staircase The Netflix original series The Staircase is a documentary series following a murder prosecution in North Carolina. Not only is it entertaining as a human story, it provides a fascinating insight into the (criminal) litigation process …

The illusion of the prevention principle

The law will not allow a person to take advantage of his or her own wrongdoing. As a matter of a policy, this is uncontroversial and stands to reason. But how is this idea manifested in the law? Is it a rule of common law or a principle of equity? And what are the consequences …

The solicitor’s possessory lien

Most practitioners understand the solicitor’s lien well enough: a solicitor can hold a former client’s file as security for payment of the solicitor’s unpaid fees. This can be quite useful security where the solicitor holds a client’s documents, especially original documents that may be required for, say, a trial. But, as with so many aspects …

When can defaulting trustees plead their own default against fellow malefactors?

The Victorian Court of Appeal recently allowed an appeal against an order staying a proceeding brought by companies in liquidation against their former directors for knowingly assisting breaches of trust allegedly committed by the companies. The Court discussed the principles that operate in such circumstances. Nicholson Street Pty Ltd (receivers and managers appointed) (in liq) …

Advocates’ immunity: intimate connection and finality

Yesterday, on 4 May 2016, the High Court delivered a judgment that should be of great interest to every lawyer working in litigation: Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16. Background Lawyers acting in litigation enjoy a number of privileges in their work. One of them is the right to make allegations …

J’accuse: but to the civil standard of proof

Most people – and hopefully all lawyers – will be familiar with the idea that criminal allegations must (ordinarily) be proved beyond reasonable doubt, whereas matters in a civil dispute need only be proved on the balance of probabilities. But what about cases which are not criminal, but involve serious allegations of wrongdoing? This often …

Unjust enrichment: unifying concept or cause of action?

The entry below was originally published in (May 2015) 89(5) Law Institute Journal 34. My thanks go to the Law Institute of Victoria for permitting me to republish it here. Abstract The law of restitution and unjust enrichment has been heavily influenced by academic commentary. However, the High Court has repeatedly stated that concepts such …