Uniform Legal Services Council appointed

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 04:24 (3 hours ago) to me The Australian Professional Liability Blog Uniform Legal Services Council appointed Posted: 16 Oct 2014 04:16 PM PDT 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. Chair: The Hon Michael Black AC QC (Vic.) — former Chief Justice of the Federal Court, appointed Chief Justice in 1991 and retired in 2010. He is currently a member of List G Barristers in Victoria as a mediator and arbitrator and is Chair of the Australian Law Schools Standards Committee. Ms Fiona Bennett (Vic.) – a member of the Legal Services Board (Victoria) since 2008 and Chairperson since 2013. Ms Bennett is a director of a number of entities including Beach Energy Limited, Hills Limited and Boom Logistics Limited. She has been a member of the Victorian Legal Services Board since 2008 and Chairperson since January 2013. Ms Bennett is a Chartered Accountant and has previously held senior executive positions at BHP Billiton Ltd and Coles Group Ltd, and has been Chief Financial Officer of several organisations in the health sector. She is Chair of the Audit Committee of the Department of Education and Early Childhood Development and is a member of the Audit and Risk Committee of the Australian Prudential Authority and the Department of Environment and Primary Industries. Ms Kim Boettcher (NSW) – a lawyer with experience in corporate governance, consumer advocacy and practice in both the UK and Australia. Ms Boettcher has been a Solicitor at The Aged- care Rights Service Inc. in Sydney, Australia since 2010. She has attended and addressed two United Nations Open-Ended Working Groups on Ageing in New York in 2013 and 2014, in support of a Convention of the Human Rights of Older People. Her organisation forms part of an Australian network of independent Community Legal Centres. Ms Boettcher has practised law in England and Wales, NSW and Queensland. She is also a Member of the NSW Minister of Fair Trading’s Retirement Villages Advisory Council and in the past was a Member of the Committee established by the Minister to draft a standard retirement village contract and disclosure documents. Ms Boettcher is also a Member of the COTA NSW Policy Advisory Group and the International Commission of Jurists Australia. Mr Steven Stevens (Vic.) – the nominee of the Law Council of Australia and a former president of the Law Institute of Victoria and Director of the Law Council of Australia. Mr Stevens is a tax practitioner and Principal at Stenas Legal. He is a member of the Victorian Legal Services Board, elected as a legal practitioner representative in July 2013. Mr Stevens practised as an economist before being admitted to legal practice in 1988. Between 1993 and 2011, he was a tax partner at Herbert Smith Freehills. Mr Stevens has held a number of positions within the legal profession, including President of the Law Institute of Victoria (2010) and Director at the Law Council of Australia (2010-11). He has been the Chair of the Professional Ethics Committee of the Law Council of Australia since 2009 and has represented the profession on a number of external bodies, including the Australasian Institute of Judicial Administration. Mr Bret Walker SC (NSW) – the nominee of the Australian Bar Association and a former president of both the Law Council of Australia and the NSW Bar. Mr Walker is currently a barrister at St James’ Hall Chambers. He was admitted to the NSW Bar in 1979 and appointed Senior Counsel in 1993 and Queen’s Counsel in 1994. Mr Walker has held several senior positions including President of the NSW Bar Association, President of the Law Council of Australia, Chairman of LCA National Criminal Law Liaison Committee and Governor of the Law Foundation of NSW. He is Editor of the NSW Law Reports. He also held office as the first Independent National Security Legislation Monitor from 2011 to 2014. He prepared the 1993 NSW Barristers’ Rules which were adapted to produce the legal profession uniform law in relation to advocacy.

The practice of Law CAN NOT be licensed by any state/State. (Schware v. Board of Examiners, 353 U.S. 238, 239) The practice of Law is AN OCCUPATION OF COMMON RIGHT! (Sims v. Aherns, 271 S.W. 720 (1925))

Jurisprudentia Menu THE BAR CARD AS PER THE UNITED STATES SUPREME COURT; The practice of Law CAN NOT be licensed by any state/State. (Schware v. Board of Examiners, 353 U.S. 238, 239) The practice of Law is AN OCCUPATION OF COMMON RIGHT! (Sims v. Aherns, 271 S.W. 720 (1925)) The "CERTIFICATE" from the State Supreme Court: ONLY authorizes, To practice Law "IN COURTS" as a member of the STATE JUDICIAL BRANCH OF GOVERNMENT. Can ONLY represent WARDS OF THE COURT, INFANTS, PERSONS OF UNSOUND MIND (SEE CORPUS JURIS SECUNDUM, VOLUME 7, SECTION 4.) "CERTIFICATE" IS NOT A LICENSE to practice Law AS AN OCCUPATION, nor to DO BUSINESS AS A LAW FIRM!!! The "STATE BAR" CARD IS NOT A LICENSE!!! It is a "UNION DUES CARD". The "BAR" is a "PROFESSIONAL ASSOCIATION." 1. Like the Actors Union, Painters Union, etc. 2. No other association, EVEN DOCTORS, issue their own license. ALL ARE ISSUED BY THE STATE. It is a NON- GOVERNMENTAL PRIVATE ASSOCIATION. The State Bar is; An Unconstitutional Monopoly. AN ILLEGAL & CRIMINAL ENTERPRISE; Violates Article 2, Section 1, Separation of Powers clause of the U.S Constitution. There is NO POWER OR AUTHORITY for joining of Legislative, Judicial, or Executive branches within a state as the BAR is attempting. "BAR" members have invaded all branches of government and are attempting to control de jure governments as agents of a foreign entity! It is quite simple to see that a great fraud and conspiracy has been perpetrated on the people of America. The American Bar is an offshoot from London Lawyers' Guild and was established by people with invasive monopolistic goals in mind. In 1909 they incorporated this TRAITOROUS group in the state of Illinois and had the State Legislature (which was under the control of lawyers) pass an unconstitutional law that only members of this powerful union of lawyers, called the "ABA," could practice law and hold all the key positions in law enforcement and the making of laws. At that time, Illinois became an outlaw state, and for all practical purposes, they seceded from the United States of America. The "BAR ASSOCIATION" then sent organizers to all the other states and explained to the lawyers there how much more profitable and secure it would be for them, as lawyers, to join this union and be protected by its bylaws and cannons. They issued to the lawyers in each state a charter from the Illinois organization. California joined in 1927 and a few reluctant states and their lawyers waited until the 1930's to join when the treasonous Act became DE FACTO and the Citizen's became captives. Under this system, the lawyers could guarantee prejudged decisions for the privileged class against the lower class. This was all made possible by the AMERICAN BAR ASSOCIATION to favor the right and have unlawfully substituted them in place of Constitutional Laws. The Constitution was written in plain English and the Statutes passed by Congress were also in plain English, with the intent of Congress how each law should be used and not the opinions of various Judges as the codes list. Any normal person can read the Constitution and Statutes and understand them without any trouble. The public in California was shocked to learn that the State Government has no control or jurisdiction over the Bar Association or its members. The state does not accredit the law schools or hold Bar examinations. They do not issue state licenses to LAWYERS. The Bar Association accredits all the law schools, holds their private examinations and selects the students they will accept in their organization and issues them so-called license but keeps the fees for themselves. The Bar is the only one that can punish or disbar a Lawyer. They also select the lawyers that they consider qualified for Judgeships and various other offices in the State. Only the Bar Association, or their designated committees, can remove any of these lawyers from public office. The State Legislature will not change this system as they are also a designated committee of the Bar. On August 21, 1984, Rose Bird, Chief Justice of the California State Supreme Court, another of the Bar Associations Judicial Committee's, stated in essence, that the Bar should determine the legality of all initiatives before they were allowed to go on the ballot. This is contrary to both State and Federal Constitutions, as well as the Laws of this Nation instituted By and For the People as a Sovereign UNITY of Independent States of We The People, not a fraudulent Corporate entity of Lawyers. This is a tremendous amount of power for a PRIVATE union that is incorporated and headquartered in Illinois to hold over the Citizens of California or any other state. The only recourse is through this initiative process and vote by the people. After the Founding Fathers had formed the Constitution, outlining the laws as to the way our government was to be run, Thomas Jefferson said, in essence, "This proves that plain people, if given the chance, can enact laws and run a government as well as or better than royalty and the blue bloods of Europe." The American people must stop thinking that lawyers are better than they are and can do a better job than they can before the courts of America. Under the Common Law and the Laws of America, no where is it expressly given for anyone to have the power or the right to form a Corporation. "Corporations" are given birth because of ignorance on the part of the American people and are operating under implied consent and power which they have usurped and otherwise stolen from the people. By RIGHT AND LAW THEY HAVE NO POWER, AUTHORITY, OR JURISDICTION, and must be put out of business by the good Citizens of America in their fight for FREEDOM. The U.S. Constitution GUARANTEES to every state in this union a REPUBLICAN FORM of government. Any other form of government is FORBIDDEN. No public officer or branch of government can be limited to a RULING CLASS of any kind, or the states become ARISTOCRACIES and NOT Republics. Also, the lawyers have made themselves 1st Class Citizens, where many public offices and branches of government are open to lawyers only. All other people are limited to only two branches of government and to only certain offices in those two branches of government, making all people who are non-lawyers into 2nd class subject citizens. When the courts belong to the people, as the United States Constitution REQUIRES, (Article IV, Section 4, we the people, will NEVER rule against themselves.) In these Unconstitutional foreign tribunals "courts" (hoodlum centers), "men" in black dresses, that are Unconstitutional ROBES OF NOBILITY. (Article 1, Section 9 and 10) dispense a perverted ideology, where the people are terrorized by members of the BLACK ROBE CULT (lawyers and lawyer judges in the courtrooms). The legislative branch of government does NOT have the Constitutional Power to issue Court Orders or any other kind of Orders to the people, as a "fiction court" or a "court/corporation for profit and gain" cannot reach parity with a lawful man. ONLY Presidents and Governors have the Constitutional Power to grant PARDONS, but lawyers and lawyer- judges are unconstitutionally granting PARDONS with "immunity from prosecution." Citizens are not permitted to act like people in the courts. The Citizen (2nd class) is told that he does not know how to fill out fancy lawyer forms; that he is not trained in the law; that he does not know court rules and procedures; etc. This is Unconstitutional "lawyer system," only HEARSAY SUBSTITUTES (lawyers) NOT under oath, have access to the fiction/for profit and gain courts, even though ONLY sworn testimony and evidence can be presented in court. Anything else is "Bill of Attainder," NOT permitted under the U.S. Constitution (Article 1, Sections 9 and 10). The U.S. Constitution does NOT give anyone the right to a lawyer or the right to counsel, or the right to any other HEARSAY SUBSTITUTE. The 6th Amendment is very SPECIFIC, that the accused ONLY has the right to the ASSISTANCE of counsel and this ASSISTANCE of counsel CAN BE ANYONE THE ACCUSED CHOOSES WITHOUT LIMITATION. LAWYERS and LAWYER-JUDGES: Created Unconstitutional "lawyer system" pre-trial "motions" and "Hearings" to have eternal EXTORTIONISTIC litigation's, which is BARRATRY and also is in violation of the U.S. Constitution, and Article 1, as this places defendants in DOUBLE JEOPARDY a hundred times over. Defendants only have a right to A TRIAL, NOT TRIALS. When a criminal is freed on a TECHNICALITY, HE IS FREED BECAUSE OF A FIX and a PAY-OFF, as a defendant can only be freed if found innocent BY A JURY NOT BY ANY "TECHNICALITY." Whenever a lawyer is involved in a case directly or indirectly, as a litigant or assisting in counsel, ALL LAWYER- JUDGES HAVE TO DISQUALIFY THEMSELVES, AS THERE CANNOT BE A CONSTITUTIONAL TRIAL and also there would be a violation of the conflict of interest laws, along with the violation of separation of powers and checks and balances, because "OFFICERS" OF THE COURT ARE ON BOTH SIDES OF THE BENCH. These same LAWYER-JUDGES are awarding or approving LAWYER FEES, directly and indirectly, amounting to BILLION OF DOLLARS annually, all in violation of conflict of interest laws. As long as there are lawyers, there will never be any law, Constitution or Justice. There will only be MOB RULE, RULE BY A MOB OF LAWYERS. CASE "LAW" IS UNCONSTITUTIONAL: As CASE "LAW" IS ENACTED BY THE JUDICIAL BRANCH OF GOVERNMENT. When a lawyer- judge instructs, directs, or gives orders to a jury, the lawyer-judge is TAMPERING WITH THE JURY. He also tampers with testimony when he orders the answers to be either "Yes" or "No." The lawyer-judge also tampers, fixes, and rigs the trial when he orders anything stricken from the record, or when he "rules" certain evidence and the truth to be inadmissible. This makes the trial and transcript FIXED and RIGGED, because the jury does not hear the REAL TRUTH and ALL THE FACTS. Juries are made into puppets by the lawyers and lawyer- judges. All lawyers are automatically in the judicial branch of government, as they have the Unconstitutional TITLE OF NOBILITY (Article 1, Section 9 and 10), "Officer of the Court." Citizens have to be elected or hired to be in any branch of government, but non-lawyer Citizens are limited to only two of the three branches of government. Lawyers, as 1st class citizens, can be hired or elected to any of the three branches of government. Lawyers, "Officers of the Court," in the Judicial Branch, are Unconstitutionally in two branches of government AT THE SAME TIME whenever they are hired or elected to the executive or legislative branches. This is a violation of the separation of powers, checks and balances, and the conflict of interest laws. District attorneys and State's attorneys have taken over the Grand Juries FROM the people, where the people are DENIED ACCESS to the Grand Juries when they attempt to present evidence of crimes committed in the courtrooms by the lawyers and lawyer-judges. The U.S. Constitution, being the Supreme Fundamental Law, is not and CANNOT be ambiguous as to be interpreted, or it would be a worthless piece of paper and we would have millions of interpretations (Unconstitutional amendments) instead of the few we have now. That is why all judges and public servants are SWORN TO SUPPORT the U.S. Constitution, NOT interpret it. Under INTERNATIONAL ORDERS: ALL LAWYERS, whether they left law school yesterday or 50 years ago, are EXACTLY THE SAME. All lawyers have to file the same motions and follow the same procedures in using the same Unconstitutional "lawyer system". In probate, the lawyers place themselves in everyone's will and estate. When there are minor children as heirs, the lawyer-judges appoint a lawyer (a child molesting Fagin) for EACH CHILD and, at times, the lawyer fees EXCEED the total amount of the estate. An OUTRAGEOUS amount of TAX "MONEY" is directly and indirectly STOLEN BY LAWYERS. Money that is budgeted to County/City/Borough Boards, School Boards and other local and federal agencies eventually finds its way into the pockets of lawyers, as ALL of these agencies are "TRICKED" and "FORCED" into ETERNAL EXTORTIONISTIC LITIGATION. In the state of Alaska and Hawaii, the BAR ASSOCIATION has mandated that all judges are to be licensed to practice law (e.g. Alaska Constitution, Article IV, Section 4). This license requirement is not found in any other state of the Union. As all licenses to practice law in the state of Alaska and Hawaii are issued by a judge, what judge is qualified to issue a license to practice law to another judge? As only members of the Bar may be licensed to practice law (e.g. A.S. 08.08.020), Alaska and Hawaii judges are REQUIRED to be members of the BAR and as such, they are prejudiced to do the business of the BAR. If a judge is required to be a member of the BAR, who disqualifies the judge from office if that judge does not pay the dues or violates the rules of the BAR? Every state in the Union (with the exception of Alaska and Hawaii) "prohibits" judges from holding licenses to practice law.

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

The Australian Professional Liability Blog Inbox x The Australian Professional Liability Blog via google.com 04:17 (9 hours ago) to me The Australian Professional Liability Blog Executrixes’ denial of deceased’s alcoholism without any proper factual foundation results in indemnity costs order Posted: 14 Oct 2014 10:51 PM PDT 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. Client obtains Anton Piller order over solicitor’s hard disk in fees dispute Posted: 14 Oct 2014 05:20 PM PDT In Ho v Fordyce [2014] NSWSC 1404, there is a dispute between solicitor and client in relation to fees. The client contended that costs agreements relied on by the solicitor were what Rein J described as ‘a recent invention’. Given that the client asserts that there was no costs agreement, presumably the allegation is that someone forged the documents relied on by the solicitor. There is apparently some evidence already before the Court of dodginess. The client applied ex parte 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 rather 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 or granted before.

What does an indemnity costs order actually get you?

The Australian Professional Liability Blog via google.com 04:10 (4 hours ago) to me The Australian Professional Liability Blog What does an indemnity costs order actually get you? Posted: 06 Oct 2014 07:20 PM PDT 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. You are subscribed to email updates from The Australian Professional Liability Blog To stop receiving these emails, you may unsubscribe now. Email delivery powered by Google Google Inc., 20 West Kinzie, Chicago IL USA 60610

What Orders Ought Follow the Setting Aside of a Costs Agreement?

The Australian Professional Liability Blog via google.com 05:12 (2 hours ago) to me The Australian Professional Liability Blog What orders ought follow the setting aside of a costs agreement? Posted: 02 Oct 2014 05:15 PM PDT 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.