It’s amazing we had any friends at all…

After discussing our teenage children’s facebook usage – and their facebook ‘friends’ numbering in the hundreds – the taxi driver driving me home yesterday commented about our own time as teenagers without facebook and without the way it makes keeping in touch with people so easy:  “It’s amazing we had any friends at all!”.

Of course, we did have friends (really, at least a few!)  and there are ongoing debates about the quality and real connection (or otherwise) of very extensive facebook ‘friends’.

However, it reminded me again of how things have changed in this social media connected world of ours.

With some 45% of Australians accessing social media at least once a day and 30% of small businesses using it, it is clear that even the way we do business and keep up to date with what is going in our particular industry has changed.  As a lawyer who has been practicing since before faxes (and who well remembers the first clunky huge mobile phones)  I am very interested in how these changes are happening in the legal sphere – both for lawyers, and for those we advise.

Next Tuesday 10 September I am giving a lunchtime seminar about it at the Law Institute of Victoria.

For information, or to register, see http://ow.ly/osV1F

Please come along if you are interested – and please send me your comments on how social media has changed the way you work in the meantime.

Drafting to Avoid Litigation

Recently I was asked to assist a client who had purchased a business for some millions of dollars, on the basis that the person he was paying the money to would not compete with him for five years.  The vendor had now set up in competition a year or so after the purchase. My client wanted to stop him, or be paid damages for the loss it was causing his business.

Unfortunately, the more I looked at the lengthy contract and its many annexures, the more obvious it became that my client had not purchased the protection from competition he had paid so much to obtain.

The contract was long, but it was missing crucial elements.  Someone had clearly copy-pasted from another contract of a similar type and then added in some further clauses in their own version of legalese…without stopping to check that the new clauses did not contradict the original ones or to make sure that definitions of key elements made sense when read in their new context.  Even worse, the original clauses had been added to, in ways that meant they no longer made sense.

What should have been a clear claim for breach of a restraint of trade clause became far more difficult as a result of the drafting of that contract.  On this occasion, happily there was another cause of action that could be relied on, and my client was able to obtain some relief for the losses he had suffered.  But it was not as much as he would have obtained if the contract had been thought through more in the first place. Frankly, his initial lawyer had let him down by not drafting the contract more carefully.

Drafting documents is not a topic that most of us get particularly excited about.  We do not tend to wake up in the morning and leap out of bed with joy: “Today I am going to settle a statement of claim!” Or, “I can’t wait to get stuck into that 80 page contract and make sure it protects my client every which way”! The reality is, though, that it is one of the most important things that we as lawyers can offer our clients.  Done correctly, our documents protect them at the outset of their business dealings, (offers and contracts), along the way (letters of demand), in the course of litigation (pleadings, emails and letters to opposing lawyers, written submissions), and at its conclusion (terms of settlement).  Done incorrectly, our documents can fail to protect and can set our clients up for further litigation and costs.

The longer I practise as a lawyer the more I realise how right Lord Denning was when he said:

“To succeed in the profession of the law you must seek to cultivate command of language. Words are the lawyer’s tools of trade. When you are called upon to address a judge, it is your words which count most. It is by them that you will hope to persuade the judge of the rightness of your cause. When you have to interpret a section in a Statute or a paragraph in a Regulation, you have to study the very words. You have to discover the meaning by analysing the words—one by one—to the very last syllable. When you have to draw up a will or a contract, you have to choose your words well. You have to look into the future—envisage all the contingencies that may come to pass—and then use the words to provide for them. On the words you use, your client’s future may depend”.  

(Lord Denning: The Discipline of Law, Butterworths, 1979, page 5).

“On the words you use, your client’s future may depend”.  Now there is a call to action, and an encouragement to keep working at making your communications as clear as possible.  Perhaps you even will start to leap out of bed with pleasure, knowing that today you will be drafting again….protecting and advancing the causes of your clients, who are relying on you.

 

 

Work, rest and tweet – tips and traps around social media in the context of work

‘I tweet therefore I am?’  ‘To tweet or not to tweet, that is the question?’ ‘Out, out damned tweet?’ ‘How do I love thee, let me tweet the ways…’

A little mangling of Shakespeare there, but I would love to see what he would have tweeted and blogged in this digital age.
 People have alway loved to communicate with each other, both to those they could talk to and those they left messages for (from the first scratched pictures on the walls of caves, to pinning pamphlets on church doors aka Martin Luther, to publishing books and papers).  What is different now is the ease with which your messages can be spread – and sometimes the unintended reach of them.
Are you embracing new social media, or avoiding it, or somewhere in between (like me)?   There have always been those worried by new ways of communicating. Socrates did not believe in writing his ideas down, preferring to talk about them.  Ironic, isn’t it, that we know about his ideas principally from Plato who wrote down Socrates’ thoughts?!
I am giving a seminar (with fellow barrister Erin Hill) on these issues and more on Tuesday 10 September, 2013  from 1 to 2 p.m. at the Lecture theatre at the Law Institute of Victoria.
We will be looking at advantages and disadvantages of various types of social media including how businesses can protect themselves from unintended consequence of their employees’ use of social media.
(The Law Institute and Dever’s List have partnered to present a four seminar series on related matters of particular interest to In-house Counsel.  This talk will be directed to issues involving social media of interest to lawyers more generally.)
For information, or to register, see http://ow.ly/osV1F

Joining the dots: Court of Appeal clarifies when inference of reliance can be drawn

Winning a case requires being able to have necessary evidence given and accepted, and then showing how the applicable law means the result you argue for is the correct one.  But sometimes the evidence given by your client is not quite enough to allow all the dots to be joined.  In the heat of giving evidence, a witness may forget to say something important to your case, or they may put it differently than they had previously to you in conference.   Either way, you are left with a missing – essential – piece of your proof.   What then?

In certain situations, the court will infer that a particular fact must have occurred for your client to act a certain way.

Yesterday judgment in one of my* cases was handed down, clarifying one of the times such an inference can be made.  It was  a statutory misrepresentation case (a plea of misleading and deceptive conduct).  To succeed on that claim, a plaintiff must show the necessary casual connection between a misrepresentation being made and the loss he suffered.  Direct evidence of relying on the misrepresentation would show the causal connection.  But in this case, the evidence given by the plaintiff  about reliance was not accepted by the Court as being enough to show the causal connection.  The Court was asked by the plaintiff to infer that (on the basis of the facts that were proved)  the plaintiff must have relied on the misrepresentation, and that led to the loss (the Gould v Vaggelas test (1985) 157 CLR 215).  Amongst other things, the defendant argued that as some direct evidence of reliance was given but not accepted by the Court, an inference could not be drawn (differentiating this from cases where no direct evidence of reliance was given at all).

The Victorian Court of Appeal (Weinberg and Tate JJA and Vickery AJA)  confirmed the circumstances in which such an inference can be drawn.  In particular, it held that in applying the Gould v Vaggelas principles, the drawing of the inference is not  per se precluded because some direct evidence is given, even if the thrust of that evidence is rejected.  In each case the totality of the evidence in its context, including any possible inference to be drawn when assessed against the effect of any direct evidence, needs to be examined.

In this case it upheld the trial judge’s decision.  (He had inferred that the misrepresentations found to have been made about a land sale were relied on by the purchaser in entering into the purchase, and led to his loss.)

For more details see: Lord Buddha Pty. Ltd. v Harpur [2013] VSCA 101.

Link http://www.austlii.edu.au/au/cases/vic/VSCA/2013/101.html

*  Barristers and solicitors often refer to a court case as ‘my case’ when we have worked on it.    Of course any case it is first and most importantly the client’s case – but after working hard on it we can feel quite a sense of ownership!  In this case I was instructed by Ms Chantal Reigo of Mills Oakley Lawyers, and my junior counsel was Ms Kathleen Foley.

Trusting legal costs are covered…

Is a trustee able to be indemnified from trust assets for legal costs spent fighting an application to remove him or her as trustee?

A trust is not a separate legal entity, and so at first instance its debts and liabilities need to paid by its trustee: Octavo Investments v Knight (1979) 144 CLR 360.  Generally the trustee then has a right of indemnity which arises in equity as a first charge on trust assets for all costs and expenses properly incurred;  see too S36(2) of the Trustee Act 1958 (Vic). In other words, he is not left holding the baby for the costs and expenses he has incurred as trustee of the trust (for the benefit of the beneficiaries.)  Obvious exceptions are where the trustee has acted in violation of his duties, is grossly negligent or has engaged in misconduct.  Mere mistakes (with honest intentions) will not remove the right for indemnity.

But what about when a beneficiary sues for the removal of the trustee? Can the trustee then be indemnified for legal costs of defending such a claim?  At this point, the position becomes murkier.  Depending on the findings eventually made by the Court, the trustee could be found to have been representing and acting in his own interests in defending the action, rather than advancing the interests of the trust estate.  He could then be liable for costs of the action: Miller v Cameron (1936) 54 CLR 572; Drummond V Drummond [1999] NSWSC 923.

In Tomasevic & Anor. v Jovetic & Ors (No. 3) [2012] VSC 558, decision handed down last Friday,  Justice Sifris of the Victorian Supreme Court referred to the principle in Miller.  He commented that ‘a lack of success in a proceeding does not automatically deny the trustee reimbursement from the trust fund’, and he referred to Order 63.26 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) which provide that unless the Court provides otherwise, a party who sues or is sued as trustee is entitled to the costs of the proceeding out of the funds held by the trustee, in so far as the costs are not paid by any other person.

Although Justice Sifris ordered the removal of one trustee, he did not do so for misconduct, but in order to remove an impasse in management of the trust between two trustees acting in good faith with conflicting views.  He found that the trustee who he ordered removed had not refused to be removed unreasonably, or due to obstinancy, and he was not plainly unsuitable to remain as trustee.  Rather, the trustee’s refusal to resign was found to have arisen ‘from his desire to protect the trust’, and he was justified in resisting the plaintiff’s allegations.

Ultimately His Honour ordered that part of that trustee’s costs be paid from trust assets (taking into account other matters including the trust’s financial position, and that the opposing parties as trustees ‘each did the wrong thing and the right thing’).

Please, please – get your pleadings right

We all know that the pleadings filed in a case are crucial to how the case is run: what evidence is called, what law is relied on.  Often, though, for tactical reasons and to keep the case moving without running up costs, strike out applications and demands for further particulars are not made even though one side is left guessing a little at another side’s case.  A recent decision of the Victorian Supreme Court has highlighted the risks of not carefully revisiting your own side’s pleadings as a case comes closer to trial, to be sure that the evidence you want to lead and the way you want to argue your case is in line with your pleadings: see the judgement of Davies, J in ICM Investments Pty. Ltd. v San Miguel Corporation [2012] VSC 509.  Her Honour referred in the case to what Harper J had said in Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust)Pty Ltd:

[1] Litigation is sometimes conducted to judgment with barely a glance at the pleadings.  It remains generally true that good pleadings are an important, and often crucial, element in the civil justice system.  When well drawn, as they always should be, they form the touchstone by which the uses are identified and the relevance of the evidence assessed.  

[2] Consistently with this, one of their primary purposes is to reveal to the opposite party how the party pleading puts its case.  On reading a well-drawn statement of claim, the defendant to whom it is directed will be able to say: “These are the material facts that will be the subject of the plaintiff’s evidence.  They tell a coherent, comprehensible story; and, to the extent that any additional evidence is to be called that might cause me to be taken by surprise, here is that evidence outlined in the particulars”.  

[3] A complaint that the pleadings do not achieve this is often met with the response that the opposite party knows very well, from documents and perhaps other sources, what the case against it is.  This no answer at all, at least unless the relevant documents are properly incorporated into the pleading.  It is, as a general proposition, true to say that each pleading should be sufficient in itself.  And although an element in an adversarial process, pleadings are themselves intended to be the opposite of adversarial, at least to the extent that they must, if they are to perform one of their proper functions, inform the opposite party of the case that party will have to meet at trial.

In the case before Davies, J the cost of getting it wrong (albeit inadvertently: Young QC’s statement that he had believed  his client’s pleading did show the case to be answered was of course accepted by the Court) was an adjournment of the trial, with costs of the adjournment to be paid by the party whose pleadings did not comply with the case that was opened for it.

An interview – and an ‘aha’ moment

 

Today I was interviewed about what it is like to be a barrister.  I realised I had a smile on my face for my whole answer.  After twenty three years I still love the excitement of opening a new brief, coming to grips with a new set of issues, thinking about the best way to solve a client’s problems, working out to convince a judge of my client’s case, and – of course – appearing in court and arguing matters.  Every day is different as I move from  conferences to researching law to drafting advices to negotiating settlements and – of course again – to going to court and doing my best to win my case.  How many people have that smile on their face after 23 years in the one job?   Aha, indeed!  I am in the right place.