LAWYERS CAN CONTRACT OUT OF TAXATION?

When can lawyers contract out of taxation (part 3) December 10th, 2015 · Comments (0) http://lawyerslawyer.net/2015/12/10/when-can-lawyers-contract-out-of-taxation-part-3/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+lawyerslawyer+%28The+Australian+Professional+Liability+Blog%29 This is part 3 of a post about the circumstances in which lawyers can avoid having their fees taxed. Parts 1 and 2 are here and here. In GLS v Goodman Group Pty Ltd [2015] VSC 627, Macaulay J held that an accord and satisfaction which was found to have been made in relation to fees previously rendered for work already done was not a ‘costs agreement’ in the sense of that expression in the now-repealed but still operative Legal Profession Act 2004, so that the prohibitions on contracting out of taxation in costs agreements, and the writing requirements for costs agreements were not applicable. His Honour distinguished Amirbeaggi and Jaha, discussed in the two previous posts, explaining that he was following Beba. Justice Macaulay ruled: ’43 GLS [argued] that the agreement to pay the discounted sum for the withdrawal of caveat and legal files in October 2013 constituted a ‘costs agreement’, and was thereby void due s 3.4.31 of the Act. Relevantly, s 3.4.31 provides that a costs agreement that contravenes, or was entered in contravention of, any provision of Division 5 of Part 3.4 the Act is void. 44 Division 5 contained s 3.4.26 which concerned the making of costs agreements. Section 3.4.26(5) provided — (5) Except as provided by s 3.4.48A, a costs agreement cannot provide that the legal costs to which it relates are not subject to costs review under Division 7. 45 Section 3.4.48A provided — 3.4.48A Contracting out of Division by sophisticated clients A sophisticated client of a law practice, or an associated third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may contract out of this Division. 46 Definitions of ‘sophisticated clients’, ‘third party payer’ and ‘associated third party payer’ were set out in ss 3.4.2 and 3.4.2A of the Act. GLS was none of those. Essentially, GLS argued that, because she did not fall within the category of a client who could contract out of Division 7, neither did she fall within the exception in s 3.4.26(5). Consequently, no costs agreement between her and Goodman could provide that the legal costs to which that agreement related were not subject to costs review. Implicit in her arguments was the proposition that the alleged accord and satisfaction amounted to a ‘costs agreement’ or some variation of the costs agreement she had entered with Goodman. If that were the case, she argued, the accord and satisfaction must be void because its term precluding any costs review contravened s 3.4.26(5). 47 Put succinctly, the associate judge was correct to hold as he did … The making of the accord and satisfaction was not the making of a costs agreement as defined by the Act. This simple proposition is the complete answer to GLS’s arguments. 48 The most relevant decisions on this principle are [the Court of Appeal’s decision in ‘Beba’] and [Justice Emerton’s decision at first instance in that case in ‘Gadens’] (which was affirmed in Beba). [At first instance in this case, the Costs Judge] referred to both decisions. Beba was a non-associated third party payer which had a right under s 3.4.38(2) to apply for a costs review of legal costs payable. After reaching a compromise of the sum payable for legal costs, paying the compromised sum and receiving certain benefits from doing so, Beba later sought to review the costs in the Costs Court. In Gadens, the trial judge allowed an appeal from the Costs Court, denying Beba the right to review. The Court of Appeal in Beba upheld her Honour’s decision finding: the judge was correct to conclude that section 3.4.48A did not preclude Beba entering into an agreement which finally compromised legal costs as between itself and the lender, such as to shut out its right to request information under section 3.4.38(7) and to apply for a costs review under section 3.4.38(2).[49] 49 As the understanding of the decision in Beba is vital to the outcome of this appeal, I set out the most relevant paragraphs. Ashley JA (with whom Redlich and Priest JJA agreed) said: 73 the language of s 3.4.48A, with its reference to contracting out, has an evident relationship with the conception of a costs agreement. A client and an associated third party payer may enter into such a contract. In doing so, they are permitted by s 3.4.26(5) to contract out of Division 7 — by reference to s 3.4.48A — but only if the client is, or the associated third party payer is akin to, a sophisticated client. A reading that the provisions are in step makes more sense, in my opinion, than a construction that s 3.4.26(5) addresses the time of making a costs agreement, whilst s 3.4.48A addresses contracting out either at that time or when a contract to contract out of Division 7 is made at some later time. I reject such a construction. [74] If s 3.4.48A has the field of operation which I have described, it makes perfectly good sense why the section does not refer to non-associated third party payers. Such persons cannot enter into a costs agreement. Except for the definitional section, they are not referred to in any of Divisions 1-6 of Part 3.4. [75] It is a corollary of the conclusions which I have already expressed that neither ss 3.4.26(5) nor 3.4.48A says anything about the ability of a client or associated third party payer to reach a binding settlement with a law practice respecting the quantum of legal costs charged, or of a non-associated third party payer to reach a binding settlement respecting the quantum of costs charged with the person who is under a legal obligation to pay those costs. Each of these situations — costs having been incurred and charged out — is temporally distant from the time when a costs agreement may be entered into (and then only between clients or associated third party payers with a law practice). 50 In paragraph 74 of that passage Ashley JA was addressing a distinction between categories of third party payers that does not arise in this case. But the conclusion in paragraph 75 was determinative in that case as it is here. It is important to understand the temporal distinction Ashley JA was making. His Honour’s statement that the provisions of ss 3.4.26(5) and 3.4.48A must be read in step in paragraph 73 is to be taken as meaning that they must be read as being concerned with the same point in time: that is, they are both concerned with the time of the making of the costs agreement. His Honour rejected an extended ambit of operation of s 3.4.48A which would also apply to an agreement made after the making of the relevant costs agreement. 51 Ashley JA reinforced his construction of the provisions by considering the practical consequences of the alternative view. After referring to them, he continued: t[79] … the consequences which I have outlined make it extremely improbable that Parliament could have intended them. Whilst it must be recognised that Pt 3.4, and specifically Div 7, is designed to protect persons obliged to pay legal costs, it does not follow that the desirability of parties bringing an end to a legal dispute, including its costs ramifications, and whether or not involving litigation, should be ignored. Nor would it do much for the administration of justice if agreements settling costs issues (whether solely relating to costs, or part of a wider resolution), entered into in apparent good faith, could be at risk of being partly set aside at the instance of the payer, the other party then being at risk, in some cases, of having to repay some part of moneys already received and paid to the party’s legal practitioner. 52 Counsel for GLS attempted to confine Beba’s ambit, arguing that paragraph 75 was merely dicta, with the case being concerned only with the rights of non-associated third party payers. I reject that argument. 53 Counsel also stressed that a costs agreement may be created at the start of a retainer, in the middle or at or near the end of the retainer after all or most of the costs were incurred. Having done so, counsel argued that the most relevant decision was the ex tempore judgment of Brereton J in the Supreme Court of New South Wales in Amirbeaggi v Business In Focus (Australia) Pty Ltd, which is summarised in Beba at [83]. He argued that Amirbeaggi established that a costs agreement created at the middle or the end of the retainer that may be an accord and satisfaction is still a ‘costs agreement’ within the meaning of the Act. Misunderstanding the effect of the Court of Appeal’s remarks about Amirbeaggi, counsel argued that the Court in Beba had expressly endorsed that proposition. However, what the court actually said [at [85], emphasis added] was: What was necessary for his Honour’s decision ended when he held that the deed, being a costs agreement, was void. There would be just the same result in this State, for exactly the same reason. See ss 3.4.26(5) and 3.4.31(1) of the Act. The observations thereafter made by his Honour were made without the benefit of argument. The situation falling for determination in this case did not arise. 54 Properly understood, this passage does not adopt the broader principle in Amirbeaggi. Rather, it merely makes it clear that if an agreement is found to be a ‘costs agreement’ according to the Act but does not comply with ss 3.4.26(5) and 3.4.31(1), a court will likely find that agreement is void. In any event, Amirbeaggi can be distinguished on the basis that there, during the course of the retainer, the parties signed a deed relating to how the solicitors could secure payment of previous fees. The signed deed did not compromise a dispute about legal costs. 55 GLS’s counsel also referred to the decision of Pagone J in Jaha v Defteros [2012] VSC 512, where his Honour found [at [14]] that an oral agreement reached in August 2011 for the payment of costs for outstanding fees and an upcoming trial was a ‘costs agreement’ within the meaning of s 3.4.31 of the Act. However, that case was decided before Beba and there, Pagone J was primarily considering whether the oral agreement satisfied the writing requirements of s 3.4.26(2) of the Act rather than whether there had been an accord and satisfaction. 56 Here, as set out above, the parties made a costs agreement between them at one point in time and, later, following a dispute about the costs, they entered an accord and satisfaction compromising the costs to be paid and displacing any existing right of action for or entitlement to review the costs incurred under the costs agreement. Notwithstanding the breadth of the definition of ‘costs agreement’ in the Act [fn: ‘Legal Professional Act 2004 (Vic) s 3.4.2: ‘an agreement about the payment of legal costs’.’], applying Beba, the accord and satisfaction was not such an agreement and the parties here are not prevented from settling their dispute (including shutting off the possibility of a review of costs).’ It may be seen that even a very modest discount is sufficient to satisfy the test for an accord and satisfaction which brings disputation to an end: in Beba, the lender’s legal costs, billed and yet to be billed, totalled $41,472 and consultants’ costs, for which the borrower was also liable, totalled about $19,000 plus GST (i.e. probably $20,900). The total was about $63,398, and the compromise was to pay $60,000 as one undifferentiated sum for legal costs and consultants’ fees alike. In GLS, the client, who represented herself at first instance, advanced the position that she had made no accord and satisfaction and waived no rights, so the question whether the accord was voidable because of duress or undue influence or mistake was not fully prosecuted. In fact, according to her, an employee of her conveyancer told the lawyers that she was reserving her rights to tax the costs notwithstanding that she was paying the sum required by the lawyers to remove the caveat from her home so she could sell it to pay their fees, and it was her case that that reservation of rights was promptly confirmed in writing. (The lawyers had acted in a sexual harassment claim against her employer in which she had won $100,000 and a limited costs order from VCAT. But the legal costs charged by the lawyers gobbled up her compensation entirely.) And it was on what happened next on which the case turned, and was resolved by reference to the doctrine of ostensible authority of the conveyancer. The question of how equity would deal with a client who was not very fully independently advised and who had been induced to give up their right to taxation, in circumstances where equity would say that that provided a substantial benefit to the lawyers, did not really arise. But when I am asked to advise clients, it is to equity and the presumed relationship of undue influence to which I would be turning my focus, since if a compromise of fees for work already done and already billed is not a ‘costs agreement’, then VCAT would not have jurisdiction to hear an application under s. 3.3.32 of the Legal Profession Act 2004 to set it aside. I would expect the Courts to be highly suspicious of any agreement by which a client waived a right to taxation without being fully informed of their options. GLS did allege that the lawyers had failed in their disclosure obligations, but since the lawyers had taken their fees directly from the compensation payment, the question of how s. 3.4.17(1) interacts with the provisions considered in this three part post did not arise. Section 3.4.17(1) provides that: ‘If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been [taxed].’ So the question of whether a client need honour their promise to pay a sum for legal fees already rendered for work already done pursuant to a compromise of a dispute about them in circumstances where there has been a disclosure default must also await answer in another case. I suspect not, on the basis of authorities about the construction of s. 3.4.17(2). Where there have been costs disclosure defaults, that provision prohibits the maintenance of proceedings for the recovery of legal costs, until they have been taxed. Consider, for example Koutsourias v Metledge & Associates [2004] NSWCA 313 at [11], which was touched upon in Beba.

A JUSTICE DOES NOT DECIDE WHAT IS JUSTICE AND WHAT IS THE LAW: HE ONLY APPLIES THE LAW TO A PARTICULAR CASE?

See: http://www.thehoya.com/justice-scalia-addresses-first-year-law-students/ Supreme Court Justice Antonin Scalia (CAS ’57) argued that judges should refrain from making moral decisions during a guest lecture at the Georgetown University Law Center on Monday. In the Hart Auditorium in GULC’s McDonough Hall, 360 first-year law students attended and participated in a following question-and-answer session. “It’s not up to me to decide what is justice and what is law,” Scalia said. “I can’t tell you how often I reach results that I don’t like. You show me a judge that likes the result he reaches all the time and I’ll show you a bad judge by my estimation, because I’m not supposed to make the laws; I’m supposed to apply the laws that the people have adopted directly or through their representatives.” Law Center Dean William Treanor recalled that last year when Justice John Paul Stevens spoke at the law center, he identified Scalia as the Supreme Court’s funniest judge, but Treanor noted he is also highly regarded for his scholarship on constitutional law. “Justice Scalia has profoundly shaped our nation’s jurisprudence as a member of the [Supreme] Court of course, but as a brilliant scholar, an executive branch official and also a member of the Court of Appeals,” Treanor said. “He’s a giant in the history of the law, and it’s a privilege for all of us to hear him.” Professor Randy Barnett introduced Scalia and moderated the question-and-answer session. In his introduction, Barnett said that Scalia is the most famous sitting Supreme Court justice. “Justice Scalia is the most discussed justice on the Supreme Court,” Barnett said. “And that’s true not just in your law class but in law classes across the country, and the reason for that is simple. The opinions he writes are clear, principled and above all, they are interesting.” Scalia began his lecture noting that he and former Chief Justice Edward Douglass White are the only Georgetown graduates to ever sit on the Supreme Court before he addressed his feelings on modern law education. “It has always been in the despair of us originalists that you suckle at the common law,” Scalia said. “Most of your first year is devoted to learning the common law of contracts and property, of torts. When you open your eyes to law, your image of the law is the common-law judge who figures out the right answer to a problem.” Scalia explained that he opposes that image because of its political implications. “It is true that the great judge was the judge that could figure out things,” Scalia said. “But what has intervened between then and now is something called popular democracy, and what that requires; you cannot have a democracy of any extent without a language, a language that’s agreed upon so that the people who write the laws are using the same signals as the people who apply the laws. The job of the modern judge is not to invent the law anymore, not if you believe in democracy anyway.” Scalia also commented on his commencement speech at William and Mary University, where he joked about extending law school to last four years. “There is so much more law to be learned today than there was when I graduated from law school, whole areas of law that didn’t exist,” Scalia said. “If you want to be a lawyer, you have to be learned in the law.” In the second half of the question-and-answer session, Scalia addressed questions about his participation within the Supreme Court, revealing that his law clerks actually have more influence on him than his fellow justices because they often come to conference with their minds made up. “I thrash out the cases with my law clerks much more than with my colleagues. They’re smart as can be; they’re not jaded as I am. It’s a very good process,” Scalia said. “They write the first drafts of my opinion, but I tell them how it comes out. And I don’t think they have undue influence on me. They’re the principal sounding board that I have. They often disagree with me; I disagree with them, which is more important.” Scalia also discussed his infamous proclivity to dissent. “I don’t mind the majority opinions,” Scalia said. “I write the dissents for you guys. Seriously, what’s the use of a dissent in the Supreme Court? You know on the Court of Appeals it has some practical use, you warn off other circuits. … In the Supreme Court, what’s the use? You’ve had your chance. You’ve lost. Why don’t you go quietly? ‘I dissent.’ When I write my dissents, I try to make them not only clear, but interesting.” Scalia said he geared his dissents toward study in law classes because of his hope for the next generation of lawyers. “I’ve given up on the current generation — they’re gone, forget about them. But the kids in law school, I think there’s still a chance,” Scalia said. “That’s who I write my dissents

THREE ROUTES TO JUSTICE FOR ALL SHOULD BE IMPLEMENTED IN AUSTRALIA?

http://www.lawyersweekly.ca/articles/2545 three routes to justice for all The LSUC needs to expand the scope of paralegals,online information and ABS By Noel Semple October 30 2015 issue motttive / iStockphoto.com Click here to see full sized version. Comments? Please contact us at comments@lawyersweekly.ca. Please include your name, your law firm or company name and address. A statutory mandate was given to the Law Society of Upper Canada almost ten years ago: “Act so as to facilitate access to justice for the people of Ontario.” How effectively has it been carried out? Undeniably, access to justice is now taken seriously at Osgoode Hall. Recent initiatives such as the treasurer’s action group on access to justice are encouraging to those who want all Ontarians to enjoy the law’s benefits. While great strides have been made, a great distance remains to be travelled. Three policy areas — paralegal practice, online information, and alternative business structures — illustrate both how far the law society has come and how far it must still go. Paralegal practice The legislation (Access to Justice Act 2006) that created the access to justice mandate also entrusted the law society with the regulation of paralegals. The good news is that paralegal regulation appears to be effective in terms of licensing, codes of conduct and discipline. Lawyers’ fees are beyond reach for most Ontarians when billed hourly. When levied on a contingency basis, they cut deep into recoveries for individual plaintiffs, who are seldom financially secure even after a favourable litigation outcome. It is very important that there be an affordable, but still reliable and regulated, alternative to lawyers. The problem is that the paralegal alternative is open for only a very small set of legal needs: Small Claims Court, administrative tribunals, and minor criminal cases. In family law, which is probably our worst access to justice quagmire, paralegals are prohibited to engage in any independent practice whatsoever. The traditional objection to expanded paralegal practice is that everything outside of the current scope is so complicated and risky that no one without a full lawyer license can possibly offer competent service. This objection should be subjected to comprehensive and objective scrutiny. What types of case can be competently handled by what legal professionals? How do we establish scopes of practice that maximize the public interest, taking into account client interests in price and choice as well as quality? Is it really impossible for licensed paralegals to competently handle, for example, legally straightforward “guideline” child support cases? These questions should be answered through open and rigorous study, informing evidence-based scope of practice definitions. Finding legal professionals Even if the fees are manageable, it is often a struggle for an individual to find a law firm with the right expertise, service package and trustworthiness. Personal referral is the time-honoured way to find a professional, but in our urbanized mass society it no longer works for everyone. The law society’s referral service and lawyer and paralegal directory are already helping access to justice by connecting people to legal professionals. The next step is to build out the directory into a full-featured platform telling prospective clients how to find the perfect firm. Borrowing from sites like Airbnb and TripAdvisor, the directory should include detailed information about each professional’s services and, importantly, prices. This information can be gathered from licensees on their annual reports. Reliable and unbiased service quality information should be in the directory as well. The law society can use practice audits and client surveys to gather this information and make it freely available online. Doing so would make a major contribution to access to justice in this province. Alternative business structures Permitting alternative business structures (ABS) means allowing lawyers and paralegals to collaborate with non-licensees in new ways. Access to justice can flourish if Ontario firms offer innovations such as flat fees, better use of technology and one-stop shopping for legal and non-legal needs. However, it is very difficult for the small, owner-operated law firms which serve Ontario’s individual clients today to provide all of this alone. They need capital and expertise from outside the legal guild. The law society has shown commendable flexibility in permitting professional corporations and multidisciplinary practices. It is now time to take another careful step forward, and permit limited non-licensee investment in and management of law firms. To foreclose on ABS’ access-enhancing potential on the basis of speculative ethical concerns would be gratuitous, given that these concerns can readily be addressed through fine-tuned entity regulation. To foreclose on this potential in order to protect Ontario lawyers from new competition would be a grave dereliction of the law society’s public interest mandate. The next reforms Over the past decade, the Law Society of Upper Canada has done good work to facilitate access to justice for the people of Ontario. The fact that the problem is (obviously) not yet solved is not the law society’s fault. However, this reality does necessitate continued and expanded efforts from the law society, along with the courts, the government, the law schools and the entire profession. The next generation of access-enhancing regulatory reforms should include an evidence-based paralegal scope of practice definition. It should include a full-featured online directory of legal professionals including price and quality information. It should include an open door to alternative business structures, accompanied by fine-tuned regulation to safeguard clients and legal ethics. These are not easy pills to swallow. Although they offer exciting opportunities, they also require a tolerance of new competition and new accountability. For the law society to embrace them will prove that our public interest regulator, and the legal profession that stands behind it, are truly dedicated to making justice accessible to all. Noel Semple is assistant professor at the University of Windsor Faculty of Law. He is the author of Legal Services Regulation at the Crossroads: Justitia’s Legions.

WHERE IS THE JUSTICE FOR ME IN ACCORDANCE WITH THE LAW III?

Re: Lloyd Rayney argues he is fit to practise law: Perth tribunal Inbox Unity Party WA 11:37 (17 minutes ago) to President, Press, me, Editor, Editor, President, customer.servi., Andrew, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor, Editor Dear Justice Jeremy Curthoys, We are still waiting for a reply from the Legal Practice Board as to why our member Mr. Nicholas Chin was deregistered. Is it because he is a Chinese-Australian? Looking forward to hearing from you soon. Yours respectfully, Eddie Hwang President Unity Party WA info@unitywa.org http://uitypartywa.wordpress.com http://twitter.com/unitypartywa Fax/hone: 61893681884 Save the trees - Please use email UPWA is the only political Party that calls a spade a spade.. Lloyd Rayney argues he is fit to practise law: Perth tribunal an hour ago - KATE CAMPBELLAAP FORMER Perth barrister Lloyd Rayney was aware he was breaking the law when he recorded his estranged wife’s private phone calls and disposed of potential evidence, a lawyer has argued in a WA tribunal. A three-day hearing to determine whether Mr Rayney is a fit and proper person to practise as a lawyer started in the State Administrative Tribunal on Tuesday. Mr Rayney is challenging the Legal Practice Board’s decision to cancel his certificate on the basis that he arranged the installation of phone interception equipment at his home shortly before Corryn Rayney was murdered in August 2007. Mr Rayney was acquitted in 2012 of his wife’s murder. Earlier this year he was acquitted in the District Court of illegally intercepting the home telephone to record his wife’s calls after the judge found he had no case to answer midway through a trial. Martin Cuerden, lawyer for the Legal Practice Board, said the SAT should find that Mr Rayney knew it was an offence to record his wife’s private conversations with The board rejected Mr Rayney’s claim that he arranged for a listening device to be installed to record conversation he was a part of, he said. Mr Cuerden said Mr Rayney disposed of two dictaphones he knew were covered by a search warrant — after the execution of the warrant and after police had named him the “prime” and “only” suspect in his wife’s death, which made the prospect of criminal proceedings reasonably foreseeable. He also said Mr Rayney had shown a lack of candour with the board. The lawyer said it was common ground between the parties that Mr Rayney had arranged for the device to be installed but what was in contention was his purpose for doing so and the timing of it — whether it was before or after his wife went on a trip to Melbourne with their daughters. Mr Cuerden said despite the District Court acquittal, the tribunal could still find against Mr Rayney because it had a different purpose and there was a different standard of proof, meaning the tribunal had to be satisfied on the balance of probabilities rather than beyond a reasonable doubt. Mr Rayney, who is vigorously defending himself, is set to give evidence later in the hearing, which will be the first time he has testified in a public courtroom about any of the allegations levelled at him since his wife’s murder. He has submitted a 170-page statement as part of his case. The board told the tribunal on Tuesday it was unable to serve a summons on its main witness, Timothy Pearson — the man who installed the device for Mr Rayney — to give evidence. The tribunal agreed to accept a bundle of five lever-arch files of Mr Pearson’s witness statements, affidavits and transcripts of his evidence despite Mr Rayney’s defence team strongly objecting to the “extraordinarily unusual” request. Mr Rayney’s lawyer Martin Bennett said his client was greatly disadvantaged by Mr Pearson’s absence and accused the board of trying to prove its case in a “piecemeal” and “mishmash” manner. Mr Cuerden rejected these assertions. “We greatly desire to discuss matters with Mr Pearson. We’re hampered by his absence.” he said. Mr Bennett also accused the board of trying to “go behind” the District Court acquittal. The hearing, before SAT president Justice Jeremy Curthoys and members Maurice Spillane and Patric de Villiers, continues. Tell the community whats on your mind

WHERE IS THE JUSTICE ACCORDED TO ME IN ACCORDANCE WITH THE LAW II?

From: Unity Party WA [mailto:info@unitywa.org] Sent: Thursday, August 27, 2015 11:11 AM To: Commissioner - C.C.C. Cc: Nicholas N Chin Subject: Re: Your complaint to the CCC [CCC - Unclassified] Dear Mr. Menzies, Would you like to comment, please? Yours sincerely, Eddie Hwang. ************************ Dear Sir 1) Thank you for your response letter dated 26th August 2015 to my Complaint Letter dated 26th June, 2015 bearing Your Ref: 02020/2015/MGMCMIS Auth No: 22830. As anticipated, I regret your invalid decision to my complaint based on the following missing jurisdictional facts (the Missing Jurisdictional Facts): 1.1) the conspiracy to remove my name from the roll of barristers and solicitors (the conspiracy) 1.2) the untruths of the allegations made against me which forms the basis of that conspiracy (the untruths); 1.3 ) the untruths in relation to the findings of the various judges pertaining to the misconduct of my fellow solicitors Mr. Timothy Robin Thies and Mr. David Taylor who breached the rules of the profession and are able to get away with it because of the corrupt conduct of those judges (the corrupt conduct of judicial officers); 1.4) The corrupt conduct of judicial officers was achieved through the devious process of using the untruthful findings of my alleged dishonesty in relation to Ms. Nalini when no property of hers was ever deprived by me and the fact that she withdrew from her complaint (the contrived excuse of the serious misconduct of the judicial officers). 2. Your decision not to investigate the complaint further and to shelve the Complaint made on 26.8.2015 is a non-decision or a CORAM NON-JUDICE on the grounds of the MISSING JURISDICTIONAL FACTS. 3. Your decision is that of a decision maker in the CCC and is equivalent to that of an inferior tribunal and there is no requirement for me to appeal against it for the purpose of setting aside and is an invalid decision (the Invalid Decision). 4. For the Invalid Decision to be valid, you need to address the Missing Jurisdictional Issues in the Reason for Your Decision and you have failed to do this. 5. By reason of the Invalid Decision, you have not performed your duties as is required of you in the public position that you hold and you are not serving the public interests in holding on to that office by not enlivening your authority with that Invalid Decision you have achieved. This situation may be explained by what The Chief Justice of Western Australia Wayne Martin C.J. in the case of Stewart v City of Belmont [2013] WASC 366 (10 October 2013) at paragraph 54 which states: "54 There is, of course, a well-established distinction between jurisdictional facts - facts which must exist in order to enliven jurisdiction, and facts which are to be determined in the course of exercising jurisdiction - see Corporation of the City of Enfield v Development Assessment Corporation [2000] HCA 5; (2000) 199 CLR 135, 148 [28]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 (Plaintiff M70). If jurisdiction depends upon the existence of a fact, and if it is established in proceedings for judicial review that the fact does not exist, it will follow that the decision maker has exceeded jurisdiction and relief may be granted (Plaintiff M70; Kirk v Industrial Relations Commission (2010) 239 CLR 531 [72]). On the other hand, if the existence or otherwise of the fact is something to be determined in the course of exercising jurisdiction, it will be for the decisionmaker, and not for the court exercising powers of judicial review to determine whether or not that fact exists" 6. Further Your statutory powers is not enlivened by virtue of the fact that your decision have not met with the criteria or the condition of your decision and therefore Your Invalid Decision may be described as "arbitrary, capricious, irrational and not bona fide as explained below by the High Court of Australia in many cases on Jurisdictional Facts for instance at: https://en.wikipedia.org/wiki/Jurisdictional_fact where it says, inter alia, the following: 6.1. These criteria of Jurisdiction: 6.1.1. are created by and operate through statute: Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8, at [28]; 6.1.2. may be subjective: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, at 30; 6.1.3. may be objective in nature and may also be a complex of interactions: Minister for Immigration v Eshetu [1999] HCA 21 at 130 see also R v Hickman (1945) 70 CLR 598 (5 September 1945). 6.2. But These criteria of Jurisdiction must NOT be: 6.2.1. illogical: Minister for Immigration v Eshetu [1999] HCA 21 at 130 see also R v Hickman (1945) 70 CLR 598 (5 September 1945); 6.2.2. capricious and must be actual: Liversidge v Anderson [1942] AC 206 [21] (Atkins). 7. And further, you must not lose track of the fact that the former Director of the CCC when he was a Senior Judge of the Supreme Court of WA did let me have a reprieve from the malicious persecution of the LPCC which eventually brought about the conspiracy. My efforts to regain my positon and their favours just eluded my grasp ever so often as there is a never ending leash upon me to stop me from lawyering based upon inadequate reasons and they have to keep finding a valid reason. In the end, they still did not find that reason but they found a way to make me a vexatious litigant and thereby ended my career by taking my name off the roll for no dishonesty or rather a feigned dishonesty. 8. I hope the above will help you to make a proper and valid decision so that I can lay this matter at rest, otherwise, there is going to be an unending nightmare for me to unravels why the State of Western Australia has not delivered even justice to me and my soul will not rest in peace. . Yours faithfully NICHOLAS N CHIN 387 ALEXANDER DRIVE DIANELLA WA 6059 Phone: 0892757440 Mobile: 0421642735.

WHERE IS THE JUSTICE ACCORDED TO ME IN ACCORDANCE WITH THE LAW?

From: Eddie Hwang [mailto:eddieh@iinet.net.au] Sent: Friday, August 14, 2015 9:31 AM To: eddieh@iinet.net.au Subject: Lloyd Rayney to give evidence in fight to save legal career August 12, 2015 1:57pm - KATE CAMPBELLPerthNow Lloyd Rayney’s appeal against the Legal Practice Board’s decision to cancel his certificate to practise law is set to be heard in October. Picture: File image FORMER prominent Perth barrister Lloyd Rayney is likely to give evidence at a hearing later this year as he fights to save his legal career. It will be the first time Mr Rayney takes to the witness stand to give evidence in a public courtroom on any of the allegations levelled at him since his estranged wife Corryn was murdered in 2007. Mr Rayney is challenging a decision by the Legal Practice Board to cancel his certificate to practise law. In the State Administrative Tribunal on Wednesday, it emerged that former WA Governor and experienced QC Malcolm McCusker will represent Mr Rayney at the appeal hearing scheduled to be held in October. Mr Rayney is appealing to the SAT after the LPB informed him of the cancellation last month over concerns about his behaviour shortly before his Supreme Court registrar wife was murdered – namely allegations he taped conversations with his wife and deliberately disposed of a dictaphone used to record them when he knew police had a search warrant. The Legal Profession Complaints Committee’s investigation of Mr Rayney is ongoing but should be finalised soon, the tribunal was told. Mr Rayney has previously given a commitment to the LPB that he would not engage in legal practice in WA again without first giving 42 days notice. Mr Rayney was acquitted of wilful murder in 2012 and a subsequent appeal was dismissed. The former prosecutor was also acquitted in May of enlisting a surveillance expert to illegally intercept his wife’s landline phone calls after a District Court judge ruled midway through the trial that Mr Rayney had no case to answer. Ms Rayney disappeared after her weekly bootscooting class and was found buried in Kings Park in August 2007. Mr Rayney’s is suing the State Government for defamation after a senior detective labelled him the “prime” and “only” suspect in his wife’s murder about a month after she was killed. A cold case review of Mrs Rayney’s unsolved murder was launched in May.

ADMISSIBLITY OF MATERIAL RELEVANT TO PENALTY AT THE LIABILITY STAGE: AUSTRALIAN PROFESSIONAL LIABILITY BLOG

The Australian Professional Liability Blog Admissibility of material relevant to penalty at the liability stage Posted: 07 Oct 2015 01:01 AM PDT In my experience, the Legal Services Commissioner generally assumes that material relevant to penalty is inadmissible at the liability stage. So, for example, the Commissioner applied recently for leave to re-cross-examine a practitioner in a disciplinary hearing, after the close of evidence, in order to adduce evidence relevant to penalty by reference to ‘disciplinary priors’, even though the practitioner did not propose to give further evidence. I knew there was some case which said that under legislation cognate with the Legal Profession Act 2004 there is, in law, just one hearing, but it is one of those many authorities which, despite this blog, got away from me, never to be found again. But now I have stumbled across it again, and here it is, from Puryer v Legal Services Commissioner [2012] QCA 300, a unanimous decision: ‘[33] The written submissions filed by the Legal Services Commissioner on 11 May 2011 dealt with penalty as well as the charges and gave details of findings of professional misconduct against the appellant on two earlier occasions. It was submitted that the only appropriate penalty was the removal of the appellant’s name from the roll. The appellant, in response, said that there was no evidence of his previous breaches; that his antecedents were only relevant and should only be placed before the tribunal if an adverse finding were made; and that the paragraphs dealing with penalty were prejudicial and should be struck out. [34] In oral submissions, the appellant’s counsel conceded that he could not point to anything in the tribunal’s reasons which showed that it had used the information about the appellant’s previous breaches in considering whether the charges were made out. Indeed he rejected any suggestion that the deliberations of the judicial member of the tribunal could have been affected by the material. He could not point to any prejudice to his client and did not put his submission any higher than that it would be good practice, where the tribunal consisted of lay members as well as a judicial member, to separate submissions about penalty from those about liability. [35] Section 456(1) of the Legal Profession Act provides as follows: “456 Decisions of tribunal about an Australian legal practitioner (1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.” That section appears to envisage that the tribunal may make its order upon the necessary satisfaction without necessarily conducting any further hearing. Counsel for the appellant very properly drew the court’s attention to the fact that in Madden’s case the notion of a two-step proceeding was rejected; instead, it was said that s 456 “contemplate[d] a hearing followed by both the findings of any proved misconduct and the imposition of the appropriate penalty for that misconduct”.[12] Generally speaking, it is not a denial of natural justice for a disciplinary body to receive submissions on both charge and penalty at the same time, provided the person charged has been given the opportunity to address on penalty should the question of guilt be resolved against him.[13] Here, the appellant had the opportunity – although he did not take it – to respond to the Legal Services Commissioner’s submissions on penalty. [36] The Queensland Civil and Administrative Tribunal is not bound by the rules of evidence or the practice or procedures of courts of record; it may inform itself in any way it considers appropriate; and it is required to act with as little formality and technicality with as much speed as the requirements of the Act in consideration of the matters before it permit.[14] Nonetheless, it must act on probative evidence, and there was no suggestion here that the previous breaches were relevant to the proof of the charges as, for example, similar fact evidence. But as counsel for the appellant conceded, there is no basis for supposing that the reference in the submissions to prior breaches affected the tribunal’s deliberations on whether the appellant was guilty of the charges. He did not contend, in my view correctly, that what was done rose to the level of an abuse of process. [37] However, as counsel for the appellant also submitted, the practice of putting in submissions on penalty in the same document as submissions on liability is generally undesirable. Apart from anything else, until it is known what charges have been found proved it will usually be difficult to make useful submissions; and, if adverse material in relation to antecedents is not put forward as probative on liability, the risk exists of its having a prejudicial effect. One would think, in general, that unless there were some agreement to adopt a different approach, the better course would be to give each party an opportunity to make submissions once the findings on the charges were made.’

THE EXTENDED DURATION OF THE UN-RENEWED PRACTISING CERTIFICATE: THE AUSTRALIAN PROFESSIONAL LIABILITY BLOG

The Australian Professional Liability Blog The extended duration of the un-renewed practising certificate Posted: 07 Oct 2015 05:16 PM PDT Under the Legal Profession Act 2004, if a lawyer applied for renewal of their practising certificate prior to the expiry of the old one, but a decision was not made before the old one runs out, the certificate is extended until either it is renewed or a decision to refuse renewal is finally determined by the exhaustion of all rights of review of that decision. No one has ever really known what that meant. There is a statutory review procedure in VCAT and then there are appeals all the way to the High Court. Are the appeals from the review ‘a right of review of the decision’? The Supreme Court has now determined that the certificate endures (if not earlier cancelled or suspended by the stipes) until the end of the High Court appeal. The question arose in Batrouney v Forster (No 2) [2015] VSC 541, handed down by Justice Robson yesterday (see paras [167] – [193]). It represents a further embarrassment for the Legal Services Board appointed receivers of David Forster’s practice, Hollows Lawyers, with a savage series of costs orders against the receivers in Mr Forster’s favour. That followed findings that the receivers’ proceedings were in part misconceived, and that they breached more than one provision of the Civil Procedure Act 2010. The question was at what point did Mr Forster cease to hold a practising certificate and so cease to be entitled to claim costs of acting for himself under the Cachia v Hanes (1994) 179 CLR 403 at 411–413 exception to the rule that self-represented litigants are not entitled to costs for work done by themselves. The question is a matter of significance to practitioners who get themselves fairly deep into trouble. It means that those whose practising certificates are not renewed may continue to practice and earn income to put towards the legal costs of challenging that decision, and it also means that such practitioners may brief counsel directly in circumstances where, by virtue of Bar rules about direct access, they might not otherwise be able to. And of course, it also means that if successful in such proceedings, they will get a costs indemnity against the time spent running their litigation. Mr Forster is a man with his back to the wall, the subject of an avalanche of litigation brought by professional regulators. Until recently, he had been singularly unsuccessful and much chastised. It is probably fair to say that some people in the administration of justice, including the profession, would see him as a pariah. It ought therefore be of some comfort to those responsible for the justice system that this result has obtained. It suggests that the cab rank principle is alive and well, that judges are capable of dealing with each case impartially on its merits and according to law without being unduly influenced by past cases, and that the State will not protect itself where the law requires that it be dealt with.

UNITED NATIONS ROLE OF LAWYERS

Basic Principles on the Role of Lawyers  Adopted by the Eighth United Nations Congress on the Prevention of Crime and the  Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990      Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia,  their determination to establish conditions under which justice can be maintained, and  proclaim as one of their purposes the achievement of international cooperation in  promoting and encouraging respect for human rights and fundamental freedoms without  distinction as to race, sex, language or religion,    Whereas the Universal Declaration of Human Rights enshrines the principles of equality  before the law, the presumption of innocence, the right to a fair and public hearing by an  independent and impartial tribunal, and all the guarantees necessary for the defence of  everyone charged with a penal offence,    Whereas the International Covenant on Civil and Political Rights proclaims, in addition, the  right to be tried without undue delay and the right to a fair and public hearing by a  competent, independent and impartial tribunal established by law,    Whereas the International Covenant on Economic, Social and Cultural Rights recalls the  obligation of States under the Charter to promote universal respect for, and observance of,  human rights and freedoms,    Whereas the Body of Principles for the Protection of All Persons under Any Form of  Detention or Imprisonment provides that a detained person shall be entitled to have the  assistance of, and to communicate and consult with, legal counsel,    Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in  particular, that legal assistance and confidential communication with counsel should be  ensured to untried prisoners,    Whereas the Safe guards guaranteeing protection of those facing the death penalty reaffirm  the right of everyone suspected or charged with a crime for which capital punishment may  be imposed to adequate legal assistance at all stages of the proceedings, in accordance with  article 14 of the International Covenant on Civil and Political Rights,    Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of  Power recommends measures to be taken at the international and national levels to  improve access to justice and fair treatment, restitution, compensation and assistance for  victims of crime,    Whereas adequate protection of the human rights and fundamental freedoms to which all  persons are entitled, be they economic, social and cultural, or civil and political, requires  that all persons have effective access to legal services provided by an independent legal  profession,    Whereas professional associations of lawyers have a vital role to play in upholding  professional standards and ethics, protecting their members from persecution and improper  restrictions and infringements, providing legal services to all in need of them, and  cooperating with governmental and other institutions in furthering the ends of justice and  public interest, The Basic Principles on the Role of Lawyers, set forth below, which have  been formulated to assist Member States in their task of promoting and ensuring the proper  role of lawyers, should be respected and taken into account by Governments within the  framework of their national legislation and practice and should be brought to the attention  of lawyers as well as other persons, such as judges, prosecutors, members of the executive  and the legislature, and the public in general. These principles shall also apply, as  appropriate, to persons who exercise the functions of lawyers without having the formal  status of lawyers.    Access to lawyers and legal services    1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect  and establish their rights and to defend them in all stages of criminal proceedings.    2. Governments shall ensure that efficient procedures and responsive mechanisms for  effective and equal access to lawyers are provided for all persons within their territory and  subject to their jurisdiction, without distinction of any kind, such as discrimination based on  race, colour, ethnic origin, sex, language, religion, political or other opinion, national or  social origin, property, birth, economic or other status.    3. Governments shall ensure the provision of sufficient funding and other resources for legal  services to the poor and, as necessary, to other disadvantaged persons. Professional  associations of lawyers shall cooperate in the organization and provision of services, facilities  and other resources.    4. Governments and professional associations of lawyers shall promote programmes to  inform the public about their rights and duties under the law and the important role of  lawyers in protecting their fundamental freedoms. Special attention should be given to  assisting the poor and other disadvantaged persons so as to enable them to assert their  rights and where necessary call upon the assistance of lawyers.    Special safeguards in criminal justice matters    5. Governments shall ensure that all persons are immediately informed by the competent  authority of their right to be assisted by a lawyer of their own choice upon arrest or  detention or when charged with a criminal offence.    6. Any such persons who do not have a lawyer shall, in all cases in which the interests of  justice so require, be entitled to have a lawyer of experience and competence  commensurate with the nature of the offence assigned to them in order to provide effective  legal assistance, without payment by them if they lack sufficient means to pay for such  services.    7. Governments shall further ensure that all persons arrested or detained, with or without  criminal charge, shall have prompt access to a lawyer, and in any case not later than fortyeight hours from the time of arrest or detention.    8. All arrested, detained or imprisoned persons shall be provided with adequate  opportunities, time and facilities to be visited by and to communicate and consult with a  lawyer, without delay, interception or censorship and in full confidentiality. Such  consultations may be within sight, but not within the hearing, of law enforcement officials.    Qualifications and training    9. Governments, professional associations of lawyers and educational institutions shall  ensure that lawyers have appropriate education and training and be made aware of the  ideals and ethical duties of the lawyer and of human rights and fundamental freedoms  recognized by national and international law.    10. Governments, professional associations of lawyers and educational institutions shall  ensure that there is no discrimination against a person with respect to entry into or  continued practice within the legal profession on the grounds of race, colour, sex, ethnic  origin, religion, political or other opinion, national or social origin, property, birth, economic  or other status, except that a requirement, that a lawyer must be a national of the country  concerned, shall not be considered discriminatory.    11. In countries where there exist groups, communities or regions whose needs for legal  services are not met, particularly where such groups have distinct cultures, traditions or  languages or have been the victims of past discrimination, Governments, professional  associations of lawyers and educational institutions should take special measures to provide  opportunities for candidates from these groups to enter the legal profession and should  ensure that they receive training appropriate to the needs of their groups.    Duties and responsibilities    12. Lawyers shall at all times maintain the honour and dignity of their profession as essential  agents of the administration of justice.    13. The duties of lawyers towards their clients shall include:    (a) Advising clients as to their legal rights and obligations, and as to the working of the legal  system in so far as it is relevant to the legal rights and obligations of the clients;    (b) Assisting clients in every appropriate way, and taking legal action to protect their  interests;    (c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.    14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice,  shall seek to uphold human rights and fundamental freedoms recognized by national and  international law and shall at all times act freely and diligently in accordance with the law  and recognized standards and ethics of the legal profession.    15. Lawyers shall always loyally respect the interests of their clients.    Guarantees for the functioning of lawyers    16. Governments shall ensure that lawyers (a) are able to perform all of their professional  functions without intimidation, hindrance, harassment or improper interference; (b) are able  to travel and to consult with their clients freely both within their own country and abroad;  and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or  other sanctions for any action taken in accordance with recognized professional duties,  standards and ethics.    17. Where the security of lawyers is threatened as a result of discharging their functions,  they shall be adequately safeguarded by the authorities.    18. Lawyers shall not be identified with their clients or their clients' causes as a result of  discharging their functions.    19. No court or administrative authority before whom the right to counsel is recognized shall  refuse to recognize the right of a lawyer to appear before it for his or her client unless that  lawyer has been disqualified in accordance with national law and practice and in conformity  with these principles.    20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith  in written or oral pleadings or in their professional appearances before a court, tribunal or  other legal or administrative authority.    21. It is the duty of the competent authorities to ensure lawyers access to appropriate  information, files and documents in their possession or control in sufficient time to enable  lawyers to provide effective legal assistance to their clients. Such access should be provided  at the earliest appropriate time.    22. Governments shall recognize and respect that all communications and consultations  between lawyers and their clients within their professional relationship are confidential.    Freedom of expression and association    23. Lawyers like other citizens are entitled to freedom of expression, belief, association and  assembly. In particular, they shall have the right to take part in public discussion of matters  concerning the law, the administration of justice and the promotion and protection of  human rights and to join or form local, national or international organizations and attend  their meetings, without suffering professional restrictions by reason of their lawful action or  their membership in a lawful organization. In exercising these rights, lawyers shall always  conduct themselves in accordance with the law and the recognized standards and ethics of  the legal profession.    Professional associations of lawyers    24. Lawyers shall be entitled to form and join self‐governing professional associations to  represent their interests, promote their continuing education and training and protect their  professional integrity. The executive body of the professional associations shall be elected by  its members and shall exercise its functions without external interference.    25. Professional associations of lawyers shall cooperate with Governments to ensure that  everyone has effective and equal access to legal services and that lawyers are able, without  improper interference, to counsel and assist their clients in accordance with the law and  recognized professional standards and ethics.    Disciplinary proceedings    26. Codes of professional conduct for lawyers shall be established by the legal profession  through its appropriate organs, or by legislation, in accordance with national law and custom  and recognized international standards and norms.    27. Charges or complaints made against lawyers in their professional capacity shall be  processed expeditiously and fairly under appropriate procedures. Lawyers shall have the  right to a fair hearing, including the right to be assisted by a lawyer of their choice.    28. Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary  committee established by the legal profession, before an independent statutory authority,  or before a court, and shall be subject to an independent judicial review.    29. All disciplinary proceedings shall be determined in accordance with the code of  professional conduct and other recognized standards and ethics of the legal profession and  in the light of these principles. 

THE INHERENT NATURE OF THE AUSTRALIAN POLITY PREDISPOSES ITSELF TO BULLYING AMONG THOSE IN THE MEDICAL PROFESSION JUST AS IT HAPPENS IN THE LEGAL PROFESSION:

Dear Mr. Neave, Please refer to our message to the Qld Health Minister yesterday. Both Dr. Teo and Haikerwal should be congratulated for speaking out publicly. We consider AHPRA should be investigated for not doing its job thoroughly. Since there was a Senate Inquiry four years ago, would another inquiry help? Looking forward to hearing from you in due course. Yours respectfully, Eddie Hwang Unity Party WA info@unitywa.org http://uitypartywa.wordpress.com (published) http://twitter.com/unitypartywa (published) Fax/hone: 61893681884 Save the trees - Please use email UPWA is the only political Party that calls a spade a spade. Leading Sydney neurosurgeon backs a call for a Senate inquiry into the medical complaints process ABC Corporation - Broadcast: 04/09/2015 - Reporter: Steve Cannane After Lateline's special report on French surgeon Richard Emery, who was forced out of Australia after receiving anonymous complaints and medical audits, renowned neurosurgeon Charlie Teo has supported a call by independent Senator Nick Xenophon for an inquiry. Transcript EMMA ALBERICI, PRESENTER: Last night, we revealed the story of French spinal surgeon Richard Emery, who closed his practice and left Australia after he was the subject of repeated anonymous complaints and medical audits. The story has touched a nerve inside and outside the medical profession. One of the country's most renowned neurosurgeons, Dr Charlie Teo, has backed Senator Nick Xenophon's call made on this program last night for a Senate inquiry into the medical complaints process. Charlie Teo has told Lateline that there is evidence of bullying in his profession that goes right to the top and that it's destroying the lives of doctors and their families. Today, Senator Xenophon added to the debate, describing the medical complaints process as being, "all about protecting a closed shop rather than the best standards of patient care." Steve Cannane reports. STEVE CANNANE, REPORTER: He may have moved back to France, but the plight of Dr Richard Emery has now sparked calls for a Senate inquiry into the medical complaints process in Australia. NICK XENOPHON, INDEPENDENT SENATOR: I'll be working on a Senate inquiry in relation to this. I've already had calls from some very senior surgeons around the country who say that what Dr Emery experienced is not unique and it raises some very disturbing questions about our health system. STEVE CANNANE: Last night, Lateline revealed how Dr Emery was the subject of a series of complaints and audits that ultimately led him to close his practice and leave Australia. Those complaints came from surgeons who in some cases were his competitors. Outspoken Sydney neurosurgeon Charlie Teo believes the complaints process is open to abuse and has backed calls for an inquiry. CHARLIE TEO, NEUROSURGEON: I can tell you stories where it's gone that one step further than Richard Emery, stories where good neurosurgeons - and I know this for - from first-hand experience - good neurosurgeons, good people, doing exceptional things, pushing the envelope and making the established neurosurgeons look bad. The established neurosurgeons then have bullied this particular person I'm talking about for more than seven years resulting in his death by suicide eventually. So, Richard Emery, as you heard, was on the verge of suicide. There's another chap in Melbourne who's on the verge of suicide. Others have had their families completely destroyed and their lives destroyed. STEVE CANNANE: Charlie Teo says there is a culture of bullying in surgery that goes right to the top. CHARLIE TEO: There are, unfortunately, people that I know who are very guilty of bullying and discrimination who are currently holding positions of authority in those bodies like the College of Surgeons and like hospital medical advisory boards and expert advisory boards and associations, and unfortunately, while they're there, the culture's never gonna change. So what I'd like to see, is I'd like to see a system whereby complaints have to be legitimate, they have to be for the greater good. Like Nick Xenophon said, they have to made in good faith. STEVE CANNANE: Dr Mukesh Haikerwal is a former president of the AMA and the chair of Beyond Blue's doctors' mental health program. He believes the AHPRA complaints process is harming the mental health of doctors. MUKESH HAIKERWAL, BEYOND BLUE: It's part of the problem in the way it does its work, it's part of the problem because of the way which it does mandatory reporting and it's part of the problem because of the way it just jumps on people's potentially vexatious claims and takes them all seriously without first investigating them. And that's really got to be moderated and changed to give people more confidence in the system. STEVE CANNANE: Dr Mukesh Haikerwal told a Senate Inquiry four years ago that he was concerned AHPRA's notification system would lead to doctors losing their jobs due to claims made in bad faith. He says it's time the process was reviewed. MUKESH HAIKERWAL: So if we do have someone who has a problem, we need to be able to identify them, we need to be able to know that they'll be dealt with in a way that is - the same way as we would like to be dealt with; in other words, some respect, with some thoughtfulness, and obviously, if somebody's doing something that's wrong, that needs to be rectified STEVE CANNANE: No-one from AHPRA was available for interview. In a statement, a spokesperson said, "If a notification is not made in good faith, and assessment finds no risk to the public, the matter will be closed with no adverse outcome for the practitioner. If the Board has evidence that a registered health practitioner has made a notification not in good faith, it will investigate and take appropriate action." Dr Charlie Teo believes a simple change to the system could protect doctors from vexatious complaints. CHARLIE TEO: I have thought about it and there are - I think there are ways we can get around it. Things like benchmarking. Now benchmarking simply says that, "If you're gonna complain that my complication rate is high, can you please give me a jury of similar surgeons who do similar operations and show me what their benchmark is? Show me what my complication rate is compared to theirs and if it's way, way higher, then I - I would concede. But if it's the same as or lower than, then please, back off." EMMA ALBERICI: The Federal Health Minister Sussan Ley was in her electorate today and wasn't able to speak with us. Her department did, however, respond to questions raised by last night's story and you can read those answers on the Lateline website. The address is on screen now. (www.abc.net.au/lateline)

AUSTRALIA LIKE ANY DEMOCRATIC COUNTRY MUST CHANGE IT CIVIL AND CRIMINAL JUSTICE SYSTEM AS JUDGES AND LAWYERS ARE HAVING A GAY TIME AT THE EXPENSE OF THE GENERAL AND UNKNOWING PUBLIC: http://justgroundsonline.com/forum/topics/em-heenan-j-said-in-v-re-justice-kenneth-martin-ex-parte-chin?commentId=3535428%3AComment%3A504670 a DiMare Become a fan Social justice lawyer, civil litigator and philanthropist. Email We Need Criminal and Civil Justice Reform Posted: 08/11/2015 3:14 pm EDT Updated: 08/11/2015 3:59 pm EDT Share 8 Tweet 11 Comment 3 Share on Google+Print President Obama recently highlighted the need for criminal justice reform which complements the bipartisan effort to reform our criminal justice system. However, reforming only the criminal justice system falls short of what is needed. This country sorely needs to reform both the criminal and civil justice systems, not just the criminal side. It makes sense to overhaul both the criminal and civil systems simultaneously. Change in this country moves at a glacial pace. People are suffering, particularly the most vulnerable, because our justice system is broken and backwards in substantial ways. Our country should stop procrastinating. We need these changes now. Here are commonsense suggestions for reforming both the criminal and civil justice systems: • Trial and appellate judges must list connections with parties and lawyers before them. It costs nothing for this transparency. Don't you want to know if the judge on your case is golfing, jogging or dining with your opponent or his lawyer? • Challenged judges cannot declare themselves unbiased. Motions must go to a different courthouse. It makes no sense to allow judges to judge themselves. Yes this actually happens. • Consider abolishing judicial immunity for judges who act with malice. Giving judges immunity for malicious acts is illogical and dangerous. Police officers and other public officials who act with malice can be sued, so why immunize judges? If judges were required to pay a lawyer to defend their malicious acts, malicious rulings would diminish. • Every order and opinion must accurately cite to the record. This must be non-negotiable. Judges and justices with agendas write orders and decisions based upon invented statements masquerading as "facts." These people work for the taxpayers and if they cannot do a simple task like accurately state facts and law, then they need to find another job. • Appellate justices' duties should specifically include policing lower courts. Changing their duties may change their mind-set to identify judicial misconduct. • Consider judicial term limits. It would purge the bad apples, but it would also remove great judges, which may not be beneficial. • Any lawyer who donates or causes a donation to a judge (judge's family, family member's boss, etcetera) whom the lawyer is appearing before shall be publicly reprimanded along with the judge who knowingly accepts the money or equivalent. Do it again, disbarment. • Abolish the ability for lawyers' groups to act as fronts for judicial patronization. Say goodbye to your annual Las Vegas junkets, judge and justice of the year awards, and fund-raising dinners for judges up for reelection. These groups benefit a handful of lawyers (you can guess the type) and represent the antithesis of justice. • Assign Federal Mandatory Settlement Conferences to a judge or magistrate not assigned to the case. If a Mandatory Settlement Conference is before the assigned magistrate, and he or she faces a backlog of motions, there may be a personal incentive to strong-arm an unfair settlement. • Strengthen whistle blower protection to protect anyone who reports judicial misconduct. Those who work within the justice system have a bird's eye view of what's going on. However, there is a reasonable perception that if you speak up, you will be retaliated against or harshly accused of seeking revenge. A few Ninth Circuit justices, including the one admonished for his extensive collection of sexually explicit images, sanctioned lawyers who tried to disqualify a judge (who plainly should have been disqualified). Everyone in this country should be concerned about this level of oppression--trying to silence anyone who has the courage to question a biased judge. One underpinning of Saddam Hussein's brutal regime was no one could criticize him. Through rulings, judges can display an all-pervading control of collective behavior and thought itself. Whistle blowers need our protection. • Self-regulation is illogical. National and state tribunals should be implemented to remove incompetent judges. • Make the judicial misconduct evaluation process more visible. • Open public dialog about our broken justice system. Most U.S. citizens agree Congress is dysfunctional or broken. But what people don't talk about nearly as much in public forums are the types of suggestions above. Lying and immorality, common in the United States, are now commonplace in our justice system. We must say, not in our country or you will face consequences. The judicial system must hold the line even as the rest of society goes over the cliff with immorality. We will be unable to hold the line if we do not pass laws now to make it easier to remove bad judges. We must overcome the crippling inability to remove bad judges. "And we shall overcome." An impartial judiciary is essential to the rule of law. Our justice system is worth making right! Please visit Carla DiMare at www.injusticeblog.com. MORE: Justice Social Justice Judges Judicial Nominations Judicial System Judicial Activism Judicial Misconduct Judicial Branch Judicial Bias Judicial Corruption Barack Obama Judicial Reform Criminal Justice Reform

LAWYER'S MOVEMENT - WITH GREAT POWER CAME DASHED EXPECTATIONS

Lawyers’ movement — with great power come dashed expectations Featured16 HOURS AGO BY LUAVUT ZAHID large-p-3-a From rule of law to rule of judges When the lawyers’ movement gave birth to the Black Coat Protests in 2007, Pakistan was ready for a new world. If restored, the revived judiciary was to deliver Eden to the people backing it — more than half a decade later Eden is nowhere in sight. Why wasn’t the movement able to deliver the results it had promised to the people? Chaudhry Shoaib Saleem, Advocate High Courts, thinks that the movement is a little misunderstood by the people. “I think that the lawyer’s movement was just a motivational movement, and it provided an impetus to the legal fraternity in the sense that they realised that they needed to unite against dictatorship, against unconstitutionality and for the supremacy of law,” he said. Saleem feels that the expectations attached to the movement are unfair. “Pakistan had a leadership gap and people wrongly attached their hopes to the movement thinking that the ripple effect of the revolution would extend to every aspect of life — which did not happen. Despite the expectations being there the infrastructure that the government needed to provide to the judiciary, along with the system of prosecution, was never delivered,” he asserted. “In such circumstances, there was hope but the other material factors required to substantiate said hope never existed/weren’t delivered — and all such hopes were in effect destined to shatter eventually,” he added. A senior corporate lawyer, Usman Ghazi, rubbished the idea that the movement has anything to do with improving anything. “The lawyers’ movement was meant for the restoration of the dignity of the judiciary because it started when the former chief justice was removed in an illegal and unconstitutional manner,” he said. Ghazi believes that the revolution that people are waiting for was never promised. “It was not meant to bring a revolution or change in the judicial system itself; it was a backlash against a military dictator and the removal of somebody from the judiciary,” he opined. “The point was not to ensure justice to the people, nor was it meant to provide speedy justice to the people. The point was that somebody should stand up to the dictator’s rule and judges have been doing this for quite some time,” he asserted. How did a movement such as this become one for the people, by the people, then? Ghazi felt that it was just how the situation shaped itself. “Once the CJ’s court was restored they thought that since it wasn’t just lawyers but ordinary people too that had joined the movement, some benefit should also come to them. And that was done through the introduction of different judicial policies; for instance the policy regarding earlier disposal of case, appointment of more judges, and therefore number of judges also increased,” he said. Saad Rasool, a lawyer and columnist, doesn’t share that sentiment at all and doesn’t see the situation as a black and white affair. “There is no doubt about the fact that the results of the lawyers’ movement have not lived up to the promise. The movement itself was for the right cause i.e., restoring constitutional judges, and in the process ousting the military dictatorship which was a constitutional aberration. However, somewhere in the process what we did was create demigods out of individuals,” he said. ‘Once the CJ’s court was restored they thought that since it wasn’t just lawyers but ordinary people too that had joined the movement, some benefit should also come to them’ Rasool highlighted that at some point the movement lost its core emphasis on the judiciary and rule of law and instead became fixated on the former chief justice and his followers. “In history whenever we idolise human beings over principles we set ourselves up for a number of colossal mistakes,” he said and added: “Those human beings start to believe that they are above the same rules that apply to everyone else, that their word and their heroics alone is the law, and that’s what kind of happened with the judiciary and Iftikhar Chaudhry till he retired — and there are some remnants of this that can be seen in the SC still.” The power of the judiciary The movement may not have borne the results that were expected of it by the masses but it did bring certain change. Saleem felt that it made precedence that never existed before. “This movement provided judges the courage to stand against dictatorship, which had no precedence in the history of Pakistan,” he said. “When have you ever heard of the armed forces being brought into the court? For the missing persons issue in Balochistan this was done, and even orders for FIRs were issued for active officers.” He also feels that the judiciary gets an unfair share of criticism, and it’s not accidental. “The establishment did not like this happening, and a narrative was developed against the judiciary marking it as a useless force, despite the fact that it’s no longer the same judiciary — this judiciary is no longer sleeping,” he said. The effect of the movement can verily be felt. “This is the continuation of the lawyers’ movement that the Pakistan Bar Council and other bar councils have moved the Supreme Court (SC) against the establishment of military courts and open arguments are being made and heard against them — which has also never happened before,” Saleem explained. Ghazi approaches the criticism of the judiciary from another angle. He doesn’t think that change can come overnight and people need to be more patient for it to happen. “The problem which actually lies at the root of the delays in justice is that there are not enough judges available to hear the cases. So if a judge is burdened with 6000-9000 cases, how do you expect them to perform?” he asked. The senior lawyer has his own diagnosis of how change will come. “Find suitable candidates and arrange finances, which is difficult — it is being done but it’ll take a lot of time. And once that is done ensure that quality of the judiciary is maintained,” he said. Rasool feels that the problem has more to do with the attitude of the judiciary. “The movement turned from being about the rule of law to being about the rule of judges,” he lamented. “The quintessential critique of governance in Pakistan, and the Musharraf in Pakistan, is that too much power was concentrated in one person and not in an institution — and after the lawyers’ movement the exact thing happened again,” he added. The revived judiciary started to believe that they don’t draw their power from the constitution, and instead draw their power from the people, Rasool pointed out. “In fact there were a number of statements made by Iftikhar Chaudhry about the fact that he was brought back through the mandate of the people, and because of the popular movement. When a politician thinks that way it’s alright because a politician is supposed to represent the people; the judiciary is not supposed to represent the people, the judiciary is supposed to represent the command of the constitution even when that command goes against the voice of the people,” he said. “The judiciary under Iftikhar Chaudhry began to believe that it didn’t need to abide by the constitutional command itself, and that it should go beyond the four corners of law to deliver justice for people. Whatever the constitution said became inconvenient for a while because they could bend, mould and break it to benefit the larger group of people,” he added. Lawyers running amuck From tragedies such as Daska to petty issues like beating up a police officer over a glass of water — lawyers have repeatedly made it into the news for taking the law into their own hands. In terms of Daska, Ghazi pointed out that some criticism isn’t fair. “There are two things, you cannot stop people from holding demonstrations in a democracy. Whenever a community feels that it is being oppressed it can demonstrate. This is not a crime which happened to one person, this was a crime where the president of the bar died — if an ordinary person had died there can’t have been a protest, but if the elected president of a community dies because of the police then it becomes a serious issue,” he said. However, in terms of all the other instances of lawyers acting like thugs Ghazi isn’t as forgiving. “It is unfortunate that lawyers took the law in their own hands in the protest. What is regrettable is that they manhandled police and burned offices — this is illegal and they should not have done it,” he said. “I understand that most of the people have a lot of expectations from judiciary and these should be met, and all those lawyers who take the law into their own hands should be punished. Rather, the bar for the lawyers should be set higher than an ordinary person,” he added. A little training goes a long way and Saleem felt that lawyers needed it the most. “Proper training and coaching for lawyers has failed under the bar councils. The result of this is that there are some bad eggs that are inducted into the judiciary who exploit what we can now see as unity and strength. However, they are small in number considering the total strength of lawyers in the country,” he said. The 21st amendment has made military courts a part of the constitution, and in effect as a part of the constitution it cannot be questioned However, the entitled attitudes shown by some lawyers go back to the lawyers’ movement. “One of the worst and most embarrassing legacies of the lawyers’ movement is the ‘wuklagardi’. Before anything else they need to get their hands around this and stop it somehow. The lawyers’ movement created a genie in a bottle when they said lawyers need to come out onto the streets and fight with the police, the media and people,” he said. “The entire nation came together and watched them do this for three years and then patted them on the back saying you’re doing great work against the military and the dictatorship.” After the judiciary was restored, while the leaders and senior lawyers went back to work, junior lawyers from district courts remained unsettled. “The power that was given to them once as the legitimate way to express their grievances, that genie that came out of the bottle was never put back,” Rasool explained. “It is the absolute responsibility of the senior members of the bar and bench to figure out a way to ensure that these lawyers go back to practising the law instead of violating it,” he added. What of the military courts? The SC is currently chasing the military courts down and trying to desperately undo their implementation. Most if not all lawyers view the courts with great vehemence and would not mind them coming undone. “I think the SC is in an extremely tough position. The enactment came after the APS Peshawar massacre, through probably the largest mandate that the nation has ever had — such a consensus has never been witnessed before this,” Rasool said pointing out that the military courts most likely aren’t going anywhere. “Every law in Pakistan can be struck down on the basis of the fact that it’s unconstitutional. But no provision of the constitution can be considered unconstitutional — because what would be the touchstone on which you would say that it’s invalid? What’s above the constitution?” he said. The 21st amendment has made military courts a part of the constitution, and in effect as a part of the constitution it cannot be questioned. “Now if the SC thinks that the courts are a bad idea — as most lawyers including myself do because we need to strengthen our existing courts — then the question is that if the entire people come together and say that there shall be military courts then how can a provision of the constitution be declared unconstitutional?” he asked. “In my opinion the supreme court cannot do that far. They will say that it is abhorrent and terrible, however, because it is written into the constitution we have no power to strike it down, and we wish the parliament will reconsider its decision and take it out of the constitution,” he said resolutely. The judiciary was brought back to life after great struggle and to show for it the country has had little action and several headlines. Emphasis needs to be made on the practical instead of the PR for real, tangible change to come through.

SUMMARY JUDGMENT IN DISCIPLINARY PROSECUTION OF A LAWYER?

The Australian Professional Liability Blog 05:02 (10 hours ago) to me The Australian Professional Liability Blog Summary judgment in a disciplinary prosecution? Posted: 21 May 2015 04:31 PM PDT I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here. Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS [2015] VCAT 649). The answer, according to VCAT’s President, Justice Garde? Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: ‘9. … First, the jurisdiction of the Tribunal under s 4.4.15 of the Act is a protective jurisdiction. A disbarring order or suspension is not punitive in character. In Legal Services Commissioner v Brereton6 the Court of Appeal noted that legislation such as the Act creates ‘civil norms governing the conduct of legal practitioners, the aim of which is the protection of the public and not the denunciation of the practitioner’.7 In Law Society (SA) v Murphy8 Doyle CJ described the purpose of the jurisdiction: The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner […] a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust. 10. Clyne v Bar Association (NSW) also highlights the dual nature of these orders that both protect the public from disadvantage and exploitation, and the profession from the loss of status and privilege that might follow should such abuses go without remedy.9 Numerous subsequent cases have adopted these objectives.10 The Tribunal would not be properly discharging its protective duties to the public, the legal profession and the administration of justice generally if it were simply to conclude, in the circumstances of this matter, that the respondent was guilty of professional misconduct as charged without hearing or receiving any evidence. 11 Secondly, a number of the charges are dependent on what was said in conversations, or on behaviour alleged of the respondent which is said to amount to professional misconduct. In order to assess the significance and seriousness of the allegations made against the respondent, it is necessary for the Commissioner to provide the Tribunal with evidence and material as to what is said to have taken place. 12 Thirdly, the findings and reasons of the Tribunal as they relate to the alleged professional misconduct of the respondent, and the gravity of that misconduct if proven, are of fundamental importance to the making of final orders which may significantly affect the respondent and his ability to practice.11 13 In making final orders affecting the respondent’s ability to practice, the Tribunal is required to take into account any evidence going as to rehabilitation, remorse, participation in the conduct of the investigation and hearing, delay, the respondent’s financial and family situation, the respondent’s behaviour and candour, any explanation for the respondent’s behaviour, the benefits of any further training, and any conditions that should be imposed.12 The Tribunal cannot properly discharge these responsibilities if an order is summarily made under s 78, with the result that evidence and information that may be in the possession of the Commissioner is not provided to the Tribunal. 14 Fourthly, the orders that are sought from the Tribunal are discretionary in character. In order to properly exercise its discretionary powers, the Tribunal requires evidence from the Commissioner that will assist the Tribunal in forming a view as to the orders that ought to be made, and why they should be made. 15 In the circumstances of this case, it is appropriate that the proceeding progress to final hearing rather than being dealt with under s 78(2) of the VCAT Act. Given the continuing absence of the respondent, it appears likely that the final hearing will be conducted on an unopposed basis.13′ (footnotes omitted)

LAWYERS AND CONTINGENCY FEES?

http://indaily.com.au/ispy AWill allowing lawyers to charge contingency fees increase access to justice, or create a more litigious society? Comment | A debate is looming about freeing up restrictions on the ways lawyers can charge their clients, and the answers aren’t simple, argues Morry Bailes. There is a conversation that we will all be having in the not too distant future regarding the charging of contingency fees by lawyers. Presently it is unlawful for a lawyer to charge a client a percentage of their damages. Damages are the monies awarded to a claimant in a successful civil action to compensate for their loss. The current rules only permit traditional charging, usually on a per hour rate basis. Limited conditional fee agreements are allowed involving some uplift on the usual hourly rate in the event of success, but not a straight contingency. That is still unlawful. In the dying days of the Rudd/Gillard government, then Assistant Treasurer David Bradbury ordered the Federal Productivity Commission to commence a public inquiry into access to justice in Australia. In September last year its final report was delivered to the government who tabled it in December making it available to the public. A copy can be found at here. As you might imagine the report is detailed and voluminous, however what it says about contingency fees makes for interesting reading. The commission labels the contingency style fee agreement as “damages-based” billing. This is what it has to say: The Commission is unconvinced that any perverse incentives inherent in damages-based billing are more pronounced than those embodied in conditional billing. Rather, damages-based billing has the potential to provide several advantages, including better aligning the interests of lawyers and their clients by removing incentives to over service. There is an important caveat to this claim — in order for incentives to be aligned, clients need to be fully informed about the merits, and likely costs, of pursuing their claim. The Commission considers that the prohibition on damages-based billing should be removed, subject to consumer protections such as comprehensive disclosure requirements and percentage limits on a sliding scale to prevent lawyers earning windfall profits on high value claims. So, in a nutshell, the Productivity Commission supports contingency fees arrangements. And why wouldn’t it? It comprises a bunch of economists to whom a percentage fee arrangement is easily understood and makes perfect economic and commercial sense. It allows a potential claimant access to the civil justice system that he, she or it may not otherwise enjoy, because payment of fees is contingent on success and the receipt of damages. It leads to efficient prosecution of a claim because, unlike with hourly rates, there is no incentive for a lawyer to dawdle. It is an option available to claimants in Canada, the UK and states of the USA. So why not Australia? There are two fundamental reasons why we have not gone down the contingency fee path. Both are ethical considerations. Firstly, contingencies ought to be used where there is risk associated with a claim. The risk is shared by lawyer and client and, like any sharing of risk, there is the potential for reward. A contingency may often yield to the lawyer a sum above what a fee based purely on an hourly rate may yield. On the other hand, the client gets in to the justice system when they otherwise may not be able to afford to. The ethical dilemma is when to introduce a contingency arrangement. To do so in a matter where there is little or no risk may be unethical. Where you draw the line is one of perception. The second difficulty is when to advise a client to settle rather than litigate a claim. Invested in the outcome of a matter, a lawyer may be tempted to settle early in order to avoid the risk of litigation resulting in the claimant receiving a lesser result but the lawyer still receiving the contingency. In states of America the contingency therefore slides upward the closer the matter gets to litigation, to reward the lawyer for the increasing risk. All members of the legal profession are bound by conduct rules; we are an ethical profession which is highly regulated. At present the gap in this area is being filled by largely unregulated litigation funders who expose themselves to the litigious risks and take, in effect, a contingency-style payment from the ultimate award of damages. Almost without exception all large class actions in Australia have been funded by litigation funders in this way, often on both sides. What litigation funders usually do not do is fund individual claims, which is where lawyers may need to fill the breach. Consequential amendments to conduct rules to ensure client protection and maintain ethical standards, as suggested by the Productivity Commission, may be necessary. Professor Dal Pont of the University of Tasmania Law School, who is a leading voice on the subject of legal ethics, has recently opined that the ethical challenges relating to introducing contingency fee arrangements in Australia can be overcome largely because the same ethical dilemmas exist now and are handled successfully by the profession. The conversation that we as a society and as a community must have is whether contingency fee arrangements may alter the fabric of this place. Some see such arrangements as providing access to justice. The Productivity Commission refers to those in need as the “missing middle”; well off enough to be ineligible for legal aid or legal assistance but insufficiently well off to pay for a legal action. Contingency fee arrangements are a way to get them into the civil justice system, along with poorer claimants who do not receive a grant of legal aid to pursue a civil damages claims. Against that is a concern that unmeritorious claims may be prosecuted too frequently with settlements reached by defendants for reasons of expediency. Will contingency fees provide access to justice or stoke the fires of an unnecessarily litigious society? This is the substance of the pending conversation, and the recommendations of the Productivity Commission make it inevitable that we have it. If contingency fee arrangements are to appear on Australia’s legal landscape there is a great deal more work that needs to be done. Should the contingency be capped or uncapped, and controlled by market forces? Should we, as a matter of policy, exclude such areas as family law and criminal law? All of these issues need to be addressed, but the threshold question of whether to accede to the Productivity Commission’s recommendations must be settled first. Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own. His column appears in InDaily on every second Thursday.

THE APPEARANCE OF BIAS OF A JUDGE BEING SANCTIONED?

SEE THE LINK: http://www.thestar.com/news/crime/2015/04/27/hearings-into-justice-of-the-peaces-remarks-should-proceed-lawyer-says.html Hearings into Justice of the Peace’s remarks should proceed, lawyer says Robert Whittaker retired before a disciplinary probe could examine allegations that he made controversial comments to defendants in court. But a Toronto criminal defence lawyer says that for the sake of transparency, the review should still be conducted. Share on Facebook Reddit this! Lwam Ghebrehariat was acting as duty counsel on one of the days former Justice of the Peace Robert Whittaker made controversial remarks to a defendant in court. He felt Whittaker "totally failed" to appear unbiased in the case. Lwam Ghebrehariat was acting as duty counsel on one of the days former Justice of the Peace Robert Whittaker made controversial remarks to a defendant in court. He felt Whittaker "totally failed" to appear unbiased in the case. By: Jacques Gallant Staff Reporter, Published on Mon Apr 27 2015 Speaking from up high on the bench, Justice of the Peace Robert Whittaker told a Somali man that he did not appear to be “integrating . . . into the Canadian lifestyle,” questioned whether a woman with colitis should be allowed to drive a car and made comments about mental illness that one lawyer told him were “profoundly” disrespectful. This was all in the span of about six months. Court transcripts obtained by the Star offer a glimpse into the courtroom of the former Toronto JP, whose comments to several defendants led the Justices of the Peace Review Council to order a March 25 disciplinary hearing. All details in this story come from the court transcripts. Ten days before the probe started, Whittaker retired, meaning the hearing was scrapped and the comments obtained from the transcripts were never tested in a public forum. Whittaker, who was appointed in 1998 and earned $122,000 a year, and his lawyer, Brian Irvine, did not return the Star’s requests for comment. Public hearings need to be held for the sake of accountability, said Toronto criminal defence lawyer Daniel Brown. “Transparency and accountability are pillars of our justice system,” he said. “In order to protect these values, the review council should still hold a hearing even if the justice of the peace has removed himself from the bench.” One of the complaints stems from a proceeding at the 2201 Finch Ave. W. courthouse on Oct. 30, 2013. According to a transcript, Whittaker had to decide whether to grant bail to a man who had been accused of assaulting his wife and uttering death threats, or keep him detained. The man, who identified as Somali, testified with the help of an interpreter that he was a refugee from Ethiopia on social assistance with no criminal record. He said he would abide by bail conditions including living at a specific address and taking anger management classes. The Crown expressed concern that he had no ties to the community other than to his wife, who he was ordered not to contact, and had no surety. “You have shown this court today that you are not integrating yourself into the Canadian lifestyle or the Canadian ways,” Whittaker said, according to the transcript. “You seem to be immersing yourself in the Somali community which may or may not have the same standards of Canadians, the lifestyle or Criminal Code or laws of this country, have. Unfortunately, Sir, you’re in the country of Canada. You have to live by our laws.” Whittaker ordered the man’s detention, saying he had “no assurance” that he would return to court, and said he didn’t know “of any anger management courses that are given solely in Somali unless someone can help me.” Lwam Ghebrehariat, who was acting as duty counsel that day, told the Star he was taken aback. “Judges are held to a high standard. They’re supposed to treat everybody equally regardless of their identity, and also make sure there’s not even an appearance of bias,” he said. “I think His Worship totally failed in this case.” In another instance at 2201 Finch in January 2014, Whittaker asked if it was known if the 24-year-old defendant had “mental health” before he was arrested. The prosecutor said the accused, arrested after a dispute with police, had apparently been diagnosed with depression, OCD and anxiety, and the Crown was requesting that he seek counselling. “I’m asking why does it take someone from appearing in the (accused) box until suddenly (a) they’re going to get help for alcoholism, and (b) they’re going to get help for mental health, (c) they’re not going to go hit their wife anymore. Like, I don’t understand it,” Whittaker said, according to the transcript. When the Crown prosecutor couldn’t offer an answer, Whittaker continued: “. . . it makes no sense to me because I know my own personal family. I know exactly what my children are doing. I know what the state of their mental health is. I know if they have a drinking problem. Like am I that odd out of the rest of the population of the city of Toronto? I don’t think so.” Duty counsel David Beal told Whittaker “you are profoundly disrespecting the individuals present in the body of the court and I don’t think it’s warranted in the circumstances,” reads the transcript. Beal told the Star he stands by what he said in court. Over at the provincial offences courthouse at 2700 Eglinton Ave. W., Whittaker made a number of comments to defendants while dealing with traffic tickets that led to review council complaints. Whittaker told a woman who suffers from ulcerated colitis: “I question whether you should be even driving a car,” according to a transcript. She pled guilty to parking on the sidewalk so she could run into her home to go to the bathroom. She told him her experience in court was “very humiliating.” He let her off without a fine.