Service of later medical reports

ROFESSIONAL CONDUCT – LAWYERS – Where first defendant’s solicitors failed to serve a supplementary medical report until day before trial – whether statements made to and correspondence with other parties in relation to report was misleading – solicitors subject to a duty not to make misleading statements to other parties – whether affidavit of defendant’s solicitor providing an explanation for the delay in service was misleading – duty of honesty owed by solicitors extends to avoiding misleading the Court – extends to conduct which is liable to mislead even where no false statement is made – duty breached even if Court is mislead temporarily – instructing solicitor failed to correct representations made by counsel which were likely to mislead the Court – solicitors subject to a duty to correct misleading statements

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Solicitor's duty beyond the retainer


85. The extent to which the duty requires a solicitor to advise on matters beyond a client’s express instructions is problematic. In Micarone v Perpetual Trustees Australia Ltd,[1] Debelle and Wicks JJ identified the scope of a solicitor’s duty of care as follows:[2]

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Costs for self represented litigants

Bechara trading as Bechara and Company v Bates [2016] NSWCA 294

On 27 May 2016 the Court dismissed Ms Bechara’s amended summons seeking leave to appeal from a judgment and orders of Adamson J made on 29 October 2015. Ms Bechara was not present at the hearing of the application. The respondent Mr Bates, a barrister, appeared for himself as counsel instructed by solicitors. Mr Bates made an oral application for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in respect of a) solicitors’ costs and disbursements excluding counsel’s fees and b) counsel’s fees for professional work performed by Mr Bates himself.

The issue on appeal was whether the Court should make the gross sum costs order sought. This involved consideration of whether the Court could make an order for costs in respect of a self-represented barrister.

Held (Beazley P, Meagher and Payne JJA):

(1) Generally self-represented litigants are unable to claim professional costs. An exception, known as the “Chorley exception”, applies in the case of a litigant in person who is a solicitor: [22]-[27].

London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 and Guss v Veenhuizen (1976) 136 CLR 34 applied.

(2) There is no authority of the High Court or an intermediate Court of Appeal as to whether the Chorley exception applies in respect of a self-represented barrister: [30].

(3) In the absence of any submissions put by Ms Bechara she may be taken to have conceded that the Court can make an order for costs in respect of a self-represented barrister: [65]-[70]

Wilkie v Brown [2016] NSWCA 128 applied.

Appointment of silk in NSW: declaratory relief

ASSOCIATIONS AND CLUBS – declaratory relief sought pursuant to s 21 of Federal Court of Australia Act 1976 (Cth) – whether subject matter of declarations sought is justiciable – when Court will intervene in internal affairs of voluntary associations – where association is a company limited by guarantee – where issues do not relate to rules in association’s Constitution but rather the terms of a Senior Counsel Protocol – where no contractual or property rights affected – whether issues involve threat or interference with applicant’s livelihood or reputation.

CORPORATIONS – members’ rights and remedies – oppression – whether conduct of the association’s affairs in connection with applicant’s Senior Counsel application and appointment process was oppressive to, unfairly prejudicial to or unfairly discriminatory against the applicant – Corporations Act 2001 (Cth), ss 232, 233.

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