The change is not as great as it might have been had the uniform evidence law been introduced into our land prior to the last round of amendments.  Now the law relating to implied waiver of privilege is stated in more or less the same terms as the common law, as expounded by Mann v Carnell, and the new law applies to post-commencement but pre-trial stages of court cases as well as at trial.  But there are differences too: Justice Byrne’s decision referred to below confirms it.

I blogged about the transitional provisions for the new legislation here.  It occurred to me that since the Hikers are so fond of emphasising what a basic common law right the right to assert legal professional privilege over confidential communications is, there was a real question about whether the changes ought to operate retrospectively, in the sense that communications which occurred before this year (i.e. before the commencement of the new Act) which were already entitled to legal professional privilege at common law might be adjudged not to be privileged for the purposes of proceedings governed by the new Act.  There is a presumption in statutory interpretation against the retrospective taking away of accrued rights.  But there is no such presumption in relation to changing procedures for the vindication of rights.

Someone has actually already run this esoteric argument.  In Main-Road Property Group Pty Ltd v Pelligra & Sons Pty Ltd (No 4) [2010] VSC 27, Justice Byrne, who knows a thing or two about the law of evidence, gave the argument short shrift, though his views are purely dicta:

‘33  The first question is whether the claim for privilege should be addressed under the Evidence Act 2008 or under the pre-existing statutory or common law regime.  It was at first submitted on behalf of the Artusa parties that the entitlement to legal professional privilege is a substantial rather than a procedural right and it should therefore be governed by the law as it stood in 2003 rather than by the Uniform Act which came into force on 1 January 2010.  This submission was not pressed in final address and in my view, rightly so.

34  The transitional provisions contained in clause 2 of Schedule 2 of the Evidence Act 2008 make it clear that the Act applies to a hearing commencing after the commencement date, 1 January 2010.  The provisions of Part 3.10, Division 1, differ from the pre-existing common law and the Evidence Act 1958.  In Telstra Corporation v Australis Media Holdings,[4] McClelland CJ in Eq concluded that the provisions of the New South Wales Uniform Evidence Act 1995 were inconsistent with the previous law concerning legal professional privilege so that the previous law did not apply to the trial before the court.[5] I would respectfully adopt his Honour’s observations which are equally applicable to the Victorian Evidence Act 2008.

[4] (1997) 41 NSWLR 346 at 349.

[5] See also Evidence Act 2008 (Vic) ss 9, 56(1).’

‘15    I have had some difficulty deciding whether the conduct of the applicant is unsatisfactory professional conduct or professional misconduct. Part of the difficulty has been whether I should take into account the fact that the respondent has had no previous determinations made against him of a disciplinary nature. In my view, that is something that should be taken into account on the matter of penalty but it should not be taken into account as a matter of what charge for which he should be found guilty.

16    I compare this to the hearing of a criminal matter, although it is a disciplinary matter and something entirely different, but the similarity is that a criminal court would not look at prior convictions until it had decided what breach or what act had been committed. In this particular instance, it is appropriate that I should not look at past conduct until I have decided what act has been committed, ie whether it is unsatisfactory professional conduct or professional misconduct.’

Now it’s my turn not to identify the authority, but only because I was in it, and I don’t blog my own cases.

1. The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law.[11] It seems plain enough that the basis for the rule is fairness to the defendant in the sense of his or her being informed, at the very outset, what is the specific offence which is being alleged and, if it is established, to have certainty of what charge he or she has been found guilty. Thus, as Evatt, J. explained in Johnson v. Miller[12]:

“It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.”

A like view was expressed by Gaudron and McHugh, JJ. in S v. The Queen[13] and by Kirby, J. in Walsh[14].

2. Nevertheless, as Kirby, J. recognised in Walsh[15] the rule is not absolute, his Honour giving the example of offences such as keeping a brothel, harassment and trafficking in drugs, where the relevant conduct might be constituted by activity over an extended time, thus permitting multiple acts to be quite properly charged in a single count. Although his Honour opined that little help was afforded by saying that the test is whether multiple acts can “fairly and properly” be identified as part of the same criminal enterprise or activity, he recognised that exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity or where the offence is one that can be classified as continuing in nature. And, as Lord Diplock said in Director of Public Prosecutions v. Merriman[16]:

“[t]he rule against duplicity… has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.”

Although Kirby, J. was critical[17] of what he saw as the “more lenient view” of duplicity adopted by Lord Diplock in Merriman, Dawson and Toohey, JJ. in Walsh referred to the above-cited passage without disapproval[18], their Honours also acknowledging[19] that whilst “… the practice of laying charges of a compendious kind can place an accused in a position of difficulty … in most cases the uncertainty can be dispelled by further and better particulars.”

3. As is apparent, the above cases were concerned with charges brought for breach of the criminal law. In respect of disciplinary proceedings, particularly those brought under legislation that is concerned with protection of the public interest, as was the case here, and as Mr. Brett recognised, rightly, I think, the rule against duplicity ordinarily does not apply strictly. Nevertheless, the underlying basis of the rule – fairness to the defendant and entitlement to natural justice – can have operation in the context of such disciplinary proceedings. I think that is what the Full Court[20] in R. v. Solicitors’ Disciplinary Tribunal; Ex parte L, a solicitor[21] meant when it accepted that the doctrine of duplicity could operate in tribunal proceedings. Their Honours said[22], by way of obiter:

“It is sufficient to say that a solicitor presented before a full hearing of the Solicitors’ Disciplinary Tribunal should be made clearly aware, before the hearing commences, of that with which he is charged, and what material facts are alleged to constitute the charge or charges against him: see Gee v General Medical Council [1987] 1 WLR 564, at p. 566 (HL); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Dixon J, at p. 489; Evatt J, at pp. 495 and 497. If a course of conduct is relied upon, it should be made clear that this is so – for duplicity can apply to charges before the domestic tribunals and lead to the striking out of charges suffering from that defect.”[23]

4. That the underlying basis of the rule against duplicity will have operation in disciplinary proceedings of the character now under consideration is illustrated by the cases referred to below which also highlight that, although the courts may intervene where the charge before a tribunal combines a series of similar complaints, in order to ensure that natural justice and certainty be accorded to the defendant, such intervention will ordinarily be made, not so much because there has been a breach per se of the rule against duplicity, but rather because the fundamental basis which underlies that doctrine has been offended. For example, in Gee v. General Medical Council[24] the appellant doctor received notice of a charge of serious professional misconduct, alleging that over a period of 13 months he had abused his professional position by repeatedly supplying to individual patients certain drugs. The doctor claimed that the charge was bad for duplicity as it contained a number of separate allegations relating to eight patients. The House of Lords rejected this claim, Lord Mackay of Clashfern (with whom the other Law Lords agreed) stating[25]:

“…the rule against duplicity…would be impossible to apply universally to cases relating to conduct before the [professional conduct committee]. The rule is necessary in the interests of fairness where the only answer that can be returned in respect of a particular charge is guilty or not guilty to the whole charge. It is not necessary in order to obtain fairness where…the [committee] is required to make a determination which distinguishes between facts alleged which are found proved and those which are not found proved, before moving forward to considering a determination as to guilt of serious professional misconduct based on their determination of facts found proved.”

A little later[26] Lord Mackay observed that:

“… there is no unfairness in a procedure in which a number of allegations of fact are set out in one charge and it is alleged against a medical practitioner that these matters of fact, if established, render him guilty of serious professional misconduct provided that he has fair notice in time to prepare his defence of the nature of the evidence to be led in support of these allegations … and provided the [professional conduct committee] charged to adjudicate upon the matter make plain which of the allegations of fact, if any, they have found proved in time for the practitioner to make appropriate submission and lead any further relevant evidence available to him before a determination is made whether he is guilty of serious professional misconduct.”

But his Lordship went on to caution[27]:

“In a case relating to conduct where two distinct types of misconduct are alleged and where the determination that one type of misconduct was established could not reasonably aggravate the seriousness of the other misconduct I should think it would be better and in the interests of clarity for two separate charges to be alleged.”

5. In Duncan v. The Medical Disciplinary Committee[28] the appellant doctor was charged with disgraceful conduct. The notice of charge contained multiple particulars under four broad categories of indiscretions, namely, (1) breaches of professional confidence, (2) harassment of a co-professional, (3) attempting to persuade an employee to assist in defrauding the Health Department and (4) acting callously and mercenarily towards patients. Cooke, P. noted[29] the ambiguity in the charge, but accepted that it was “understood as charging disgraceful conduct in a professional respect in any one of the particulars, or any of them cumulatively; and that it would be for the Medical Council to decide whether the facts as proved in relation to any one or more constituted such conduct.” The learned President went on to say[30]:

“It cannot be right that every complaint, if to be taken further, must be represented by a separate charge. Further, we do not think that there can be any doubt that a charge may combine a series of similar complaints by alleging a course of conduct in the carrying on of a practice and specifying the separate complaints as particulars or instances.”

A little later Cooke, P. said[31]:

“… a case is conceivable in which over a period a practitioner manifests in a diversity of ways, some more serious than others, such extensive disregard of his professional responsibilities that, viewed as a whole, his conduct can rightly be described as disgraceful in a professional respect… we can see nothing in the Act or in natural justice to prevent the Committee, after investigating a range of complaints, from regarding a comprehensive charge as appropriate as well as separate ones. Indeed it might be against the public interest to deny the Committee any right to present an all-embracing charge. It may be important that the appropriate professional tribunal should be able to look at the practitioner’s whole attitude to practice.”

6. Mitchell v. Royal New South Wales Canine Council Ltd[32] provides another illustration of the reduced scope of duplicity in disciplinary proceedings, notwithstanding that the case concerned the disciplinary proceedings brought pursuant to contract rather than statute. The disciplinary committee of the respondent voluntary association had found the appellant dog-breeder guilty of misconduct, arising from her falsely claiming to have financed and published a certain dog handbook. The single charge of misconduct was supported by five particulars which alleged misconduct by reason of breaches of five different club regulations. Breach of the regulation alleged in the first particular was premised on the appellant having acted dishonestly, whilst dishonesty was not an element of any of the second to fifth particulars, which concerned conduct discreditable to the appellant as a member of the Association. Ipp, J.A. (with whom Mason, P. and Stein, J.A. agreed) characterised[33] the charge as duplicitous because, whilst the charge alleged only one offence, there were at least two distinct sets of offences contained in the charge. But his Honour went on to say[34]:

“I do not suggest that the rule against duplicity that is applicable in criminal cases applies necessarily and to its full extent in disciplinary proceedings of voluntary associations. But as the rule is one of “elementary fairness”, the principles that have been developed in criminal law are useful guidelines in determining the nature of the prejudice that may flow from duplicitous charges in such proceedings and the consequences that should ensue.”

His Honour adopted with approval the comments of the House of Lords in Gee to the effect that a technically duplicitous charge (such as the one before him) is permissible, provided that the committee hearing it makes it clear, in good time, which particulars have been proved and which ones have not been proved. If that occurs, said his Honour, the potential unfairness of a duplicitous charge is avoided because the person is aware of precisely what has been found proved and is not prejudiced in his or her further conduct of the case. In the case before him, however, Ipp, J.A.[35] held that the committee had found the appellant guilty of misconduct without stating whether that conclusion was based on a finding of dishonesty or on a finding of discreditable conduct. Thus, there was unacceptable uncertainty as to the basis on which the appellant was found guilty of misconduct thereby justifying curial intervention.

7. Collier v. Director of Proceedings[36] provides a more recent endorsement of the principle that a charge of misconduct can be supported by multiple particulars, even where individual particulars were, in and of themselves, sufficient to constitute misconduct. The appellant midwife had been found guilty of professional misconduct by the Nursing Council in relation to her handling of a woman’s pregnancy and subsequent childbirth. The notice of charge had listed twelve particulars of professional misconduct, saying that “Particulars 1 to 12 hereof and your conduct herein amounts either separately or cumulatively to professional misconduct”. The Council found that the midwife’s guilt on any one of several particulars constituted professional misconduct. On appeal, McGechan, J. said[37] that there was “nothing objectionable in charge [sic] particulars which allege more than one factual circumstance, provided the particular is clear enough to allow the person charged to prepare a defence, and provided it can be known from the eventual decision precisely which of a number of circumstances was or were the basis of any finding.” His Honour noted[38] that “the basis on which the Council finds guilt would be evident through its established process of making factual findings before findings as to misconduct. The decision would be transparent.”
8. The matter was put succinctly and, I think, correctly by Stephen Martin of counsel in his article “Duplicity in Disciplinary Charges”[39], in which he said[40]:

“An objection that a charge is duplicitous will fail before disciplinary bodies and before courts of review on most occasions. This is so because the rule is not absolute, but rather part of the flexible notion of procedural fairness. If it is clear that a respondent was called upon to answer several charges, clear findings of fact were made, and no case submissions were entertained, an infringement of the rule will very infrequently, if ever prejudice the respondent. Disciplinary bodies can adopt procedures which will overcome any injustice which duplicity might otherwise have caused.”

9. It follows, I think, that it is permissible to charge a defendant with misconduct on the basis of an alleged course of conduct even where each instance of impugned conduct may constitute misconduct, provided the defendant can understand the factual and legal bases on which the allegations are made so that the tribunal can determine whether evidence led is admissible and, if misconduct is established, can articulate the basis for the decision. In the present case, I consider that, on its proper construction, Charge 2 alleged misconduct on the basis of a course of conduct notwithstanding the presence of the words “each of the following instances…“ in the opening part of Charge 2.[41]

In my view, read as a whole, it seems plain enough that Charge 2 alleges but one charge of misconduct followed by particulars or instances of it, rather than alleging fifteen different charges. The impugned instances of conduct were, I think, sufficiently interrelated to constitute a course of conduct. They all concerned the conduct of the legal practitioners, between late August 1998 and early 1999, when they acted as solicitors for Zhai in respect of his 457 visa application which involved the acquisition of the Paragon Café. In the circumstances, it seems to me, that the various instances of conduct alleged in paragraphs (a) to (o) were but particulars of the one offence of misconduct charged by Charge 2. That each of those acts might also have amounted to misconduct is not determinative of whether, on a proper construction of Charge 2, it alleged but one charge which was particularised in the form of the above paragraphs. But even if I am wrong in that conclusion, there is no doubt that the proceeding before the Tribunal was conducted by both parties on the basis that there was only one charge of misconduct alleged by Charge 2 and that it was based on a course of conduct constituted by the conduct alleged in paragraphs (a)-(o). It will be recalled that the appellant’s counsel before the Tribunal abandoned any claim that it was not clear how the charge was being put against the appellant. Moreover, the Tribunal ameliorated any potential unfairness by making clear which of the factual particulars and which of the instances of impugned conduct had been made out. It is on the basis of these findings that the Tribunal concluded that the applicant was guilty of Charge 2. Thus, unlike the position in Mitchell, the Tribunal’s findings in this case made it plain the basis on which it found misconduct so that there was no unacceptable uncertainty in that regard.

10. Consequently, I consider that there was no relevant unfairness to the appellant in the way in which Charge 2 was framed or as it was pressed before the Tribunal.
11. The appellant was, of course, not only entitled to have each instance of misconduct specifically identified, as was done in the context of Charge 2, but also entitled to be told which of the factual particulars (in paragraphs 1- 76) were said to be the basis of each instance of alleged misconduct. Thus, it would have been more appropriate if, in the charge, each instance of alleged misconduct identified in paragraphs (a)-(o) was specifically tied to the relevant factual particular or particulars that are set out in paragraphs 1-76 rather than merely alleging, as was done here, that because of “the matters contained in paragraphs 1-76″, the appellant was guilty of misconduct. I note for completeness, that on page 4 of the Charge document the heading attributed to the factual particulars in paragraphs 1-76 is: “Particulars of Charge”. In my view that is plainly a misdescription of the contents of paragraphs 1 – 76 which, as I have said, set out the allegations of fact on which the respondent relied to establish the misconduct alleged by Charge 2. Be that as it may, I consider that nothing turns on these deficiencies in this case given that, as I have noted, the appellant’s counsel before the Tribunal saw no difficulty in understanding what alleged facts related to any particular item of impugned conduct.’

• men who have sex with other men ’serially’ are to ’suffer death’;
• it would be a crime to rent a house to a gay;
• a woman who touches another woman with a view to seducing her will suffer life imprisonment; and
• speech in favour of homosexuality will attract a sentence of imprisonment for seven years.

There are obviously some seriously sick puppies at work in the Ugandan government.  Mind you, it seems as though it’s principally the brainchild of a born again Christian MP. It’s a pity, because Uganda was once a pretty cool African nation, before and after Idi Amin.   Now it’s the kind of place where torture is widespread, opposition leaders get arrested, their show trials get stormed by heavily armed government thugs, and 20,000 children have been abducted to work as child soldiers and slaves, forcing many of the rest in the North to leave their villages every evening to sleep in the forest, churches or schools — the ‘night commuters‘ fleeing the Lord’s Resistance Army.  More information  on the bill here.

‘Counsel for the Commissioner referred to the case of Michael Henry Pickering, a decision of the Solicitors’ Board, No. 746 of 1991, given on 6 February 1992. Dr. Pickering was found guilty of three charges of misconduct in a professional capacity. Misconduct in a professional capacity in Dr. Pickering’s case, and professional misconduct being misconduct at common law in the present case, are defined in identical terms and therefore relate to misconduct of the same kind.

33    Dr. Pickering published three articles, hence three charges. The first charge related to a paper prepared by Dr. Pickering entitled The Modern Relevance of Environmental Risk. Dr. Pickering spoke to the paper at a seminar, and distributed copies of the paper to those who attended the seminar. The Solicitors’ Board found that at least 90% of the paper had been copied, with minor alterations, from a two-part article entitled Insurance of Environmental Risks written by Mr. R.S. Ashton and published in the Insurance Law Journal Volume 4, Numbers 5 & 6. Dr. Pickering did not attribute any part of his paper to Mr. Ashton.

34    The second charge related to a paper prepared by Dr. Pickering entitled
Implications and ramifications of ISR wording variations and some side- effects of the Newcastle Earthquake – an overview. Dr. Pickering presented the paper at a seminar organised by the Australian Insurance Institute, and it was published in the Australian Insurance Institute Journal in October 1990. The paper included a section containing five paragraphs headed Insuring Against Earthquakes. The Solicitors’ Board found that the five paragraphs, with minor amendments, were copied from an article entitled Earthquakes in Australia: Before Newcastle written by Mr. J.L. Irish and published in the Australian Insurance Institute Journal in February/March 1990. Dr. Pickering did not attribute any part of his paper to Mr. Irish. The Board accepted that the words copied by Dr. Pickering “formed a relatively small part of his whole paper”.

35    The third charge related to an article prepared by Dr. Pickering entitled He who pays the piper, which was published in the Law Institute Journal in January/February 1991. The article was almost identical to an article with the same title written by Professor Roger Fisher, published in the Harvard Business Review, 64:2 March/April 1985. Dr. Pickering did not attribute any part of the article that he submitted to the Law Institute Journal to Professor Fisher. The Board found that “Dr. Pickering attempted to “pass off” Professor Fisher’s article as his own work”.

36    The Solicitors’ Board cancelled Dr. Pickering’s practising certificate from 27 February 1992 until 31 December 1992, a period of 10 months. The submission made on behalf of the Legal Services Commissioner that [the solicitor's] practising certificate should be cancelled for 12 months was based to a significant degree upon the order made in Dr. Pickering’s case.

37    The Solicitors’ Board in Dr. Pickering’s case said @ 14 that “Upon analysis, the copying of articles written by another without acknowledgement of that other’s authorship is, in the ultimate, directed either to self aggrandisement or to the enlargement of the professional practice of the author by the holding out of learning and competence.” Counsel for the Commissioner contended that [the solicitor], in submitting his research paper to the University of Melbourne sought to obtain a degree of Master of Health and Medical Law and thus promote himself as having expertise and knowledge in a field of legal practice. Counsel further contended that publication of the paper as an article in the Journal of Law and Medicine enhanced [the solicitor's] professional reputation.

38    Counsel for the Commissioner referred to two decisions of the Queensland Court of Appeal. In Re: AJG [2004] QCA 88 an applicant for admission as a solicitor of the Supreme Court disclosed a finding of academic misconduct. The finding was made because the applicant copied the work of another student when engaged in the Practical Legal Training course at Griffith University. The Court of Appeal was not satisfied as to the applicant’s fitness for admission. After saying that “Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments”, it adjourned the application for six months.

39    In Re: Liveri [2006] QCA 152 an applicant for admission as a solicitor had been found guilty of three counts of academic misconduct committed when studying for a degree in Law and Commerce at James Cook University. The findings arose out of assignments submitted in three subjects. In one assignment, she copied with minor adjustments an article from the internet, without attribution. In a second assignment, she quoted substantial commentary by Professor Sykes, without attribution. In a third assignment she quoted verbatim from a government publication, without attribution. The Court of Appeal found that the applicant lacked insight into the gravity of her conduct, and lacked fitness for admission. It adjourned the application to a date to be fixed, not within six months.’

He made admissions at an early stage after he was caught out, but persisted to the end of the misconduct hearing with mitigatory evidence which was rejected as implausible.  He pleaded guilty to two counts of professional misconduct at common law which specifically alleged that his plagiarism was deliberate.  His practising certificate was cancelled and he will not be getting a new one within 6 months of the cancellation taking effect.

On 3 March 2010 in Parramatta, Steve Mark, NSW’s Legal Services Commissioner is giving a talk on ‘Walking the Ethical Tightrope:  Balancing the Responsibilities of In-House Counsel to Key Stakeholders’.  If you would prefer to read the speech on your Ipad in the bath, click here. He would do well to include a grab from series 2 of ‘Damages‘, the brilliant HBO legal drama starring Glenn Close, Rose Byrne, and — as Claire Maddox, corporate counsel of a murderous and polluting energy company –  Marcia Gay Harden. I am quite ignorant about Mr Mark, but from what I can tell about the NSW Legal Services Commission, it seems to do some innovative and good things. His speeches are collected at this page. He has some other hats too which make him sound like a decent kind of bloke:

‘Steve Mark is a lawyer by profession, and is presently the New South Wales Legal Services Commissioner.

He is Chairman of the Australian Section of the International Commission of Jurists (“ASICJ”) and was President of the New South Wales Anti-Discrimination Board from 1988 to 1994.

During 1999 Steve participated in the Sydney Leadership program founded by the Benevolent Society of New South Wales.

He is a director of Indigenous Festivals Australia.   This company produces a number of festivals, known as “Croc Festivals” throughout Australia.

Steve was awarded an Honorary Doctorate of Laws at Macquarie University in October 2000.

Steve is also a director of Midnight Basketball, which produces basketball competitions for “at risk” street kids.’

(1) When there is a document that on its face appears to be a complete contract, that provides an evidentiary basis for inferring that the document contains the whole of the express contractual terms that bind the parties: Gillespie Brothers & Co v Cheney, Eggar & Co [1896] 2 QB 59 at 62 per Lord Russell of Killowen CJ; Gordon v Macgregor [1909] HCA 26; (1909) 8 CLR 316 at 319-20 per Griffith CJ (with whom O’Connor J agreed), at 322-3 per Isaacs J; Hoyt’s Pty Ltd v Spencer [1919] HCA 64; (1919) 27 CLR 133 at 143-4 per Isaacs J (with whom Rich J agreed); Maybury v Atlantic Union Oil Co Ltd [1953] HCA 89; (1953) 89 CLR 507 at 517 per Dixon CJ, Fullagar and Taylor JJ; State Rail Authority (NSW) v Health Outdoor Pty Ltd (1986) 7 NSWLR 170 at 191G-2C per McHugh JA (with whom Kirby P at 172G-3C and Glass JA at 180G agreed on this point); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 (FC) at 505-6 [280]- [281], 509 [293] per Allsop J (with whom Drummond and Mansfield JJ agreed); Jessop v McInteer [2003] QCA 170 (FC) at [53] per Muir J (with whom Fryberg J agreed).

(2) It is open to a party to prove that, even though there is a document that on its face appears to be a complete contract, the parties have agreed orally on terms additional to those contained in the writing: Gillespie Brothers at 62 per Lord Russell of Killowen CJ; Gordon v Macgregor at 319-20 per Griffith CJ, at 323 per Isaacs J; Hoyt’s v Spencer at 143-4 per Isaacs J; Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90; (1937) 59 CLR 348 at 357 per Latham CJ; Maybury v Atlantic Union Oil at 517 per Dixon CJ, Fullagar and Taylor JJ; Health Outdoor at 191D-F per McHugh JA; Carmichael v National Power Plc [1999] UKHL 47; [1991] 1 WLR 2042; [1999] 4 All ER 897 (UKHL) at WLR 2047B-D, F-H; All ER 901e-g, 901j-2b per Lord Irvine of Lairg LC (with whom Lords Goff of Chieveley, Jauncey of Tullichettle and Browne-Wilkinson agreed), at WLR 2049C-D, 2050B-D; All ER 903e-g, 904e-h per Lord Hoffmann (with whom Lords Goff of Chieveley and Jauncey of Tullichettle agreed); Saad v TWT Ltd [1998] NSWCA 199 at 6 per Handley JA (with whom Priestley and Powell JJA agreed); Jessop v McInteer at [51] per Muir J; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 at 483-4 [35]- [36] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ. Conversely, it is open to a party to prove that the parties have orally agreed that a document should contain the whole of the terms agreed between them: NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 77A-B per Gleeson CJ and Handley JA.

(3) The parol evidence rule applies only to contracts that are wholly in writing, and thus has no scope to operate until it has first been ascertained that the contract is wholly in writing: Turner v Forwood [1951] 1 All ER 746 (EWCA) at 749F per Denning LJ; Heath Outdoor at 191E, 192A-C per McHugh JA; Norwest Beef Industries Ltd v Peninsular and Oriental Steam Navigation Co (1987) 8 NSWLR 568 at 570B-C per Hope JA (with whom Samuels JA agreed); NSW Cancer Council v Sarfaty at 76G per Gleeson CJ and Handley JA; Branir v Owston Nominees at 508 [287] per Allsop J; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [8] per Spigelman CJ; Nicolazzo v Harb [2009] VSCA 79 at [90] per Dodds-Streeton JA (with whom Ashley and Neave JJA agreed).

(4) Where a contract is partly written and partly oral, the terms of the contract are to be ascertained from the whole of the circumstances as a matter of fact: Moore v Garwood [1849] EngR 1122; (1849) 4 Exch 681 at 689-90; [1849] EngR 1122; 154 ER 1388 at 1391-2; 80 RR 738 at 745-6 per Patteson J delivering the judgment of the Court of Exchequer Chamber; Stones v Dowler (1860) 29 LJ Ex 122 at 124; 121 RR 882 at 884 per Martin B; Bolckow v Seymour [1858] EngR 873; (1864) 17 CB NS 107; 144 ER 43; 142 RR 272 at CB NS 121-2; ER 49; RR 282 per Byles J, at CB NS [1862] EngR 1021; 122; ER 49; RR 282 per Keating J; Palmer v Bank of Australasia (1895) 16 NSWLR (L) 219 at 223-4 per Darley CJ, Windeyer and Cohen JJ (affirmed on a different ground on appeal to the Privy Council in Bank of Australasia v Palmer [1897] AC 540); Deane v The City Bank of Sydney [1904] HCA 44; (1904) 2 CLR 198 at 209 per Griffith CJ, Barton and O’Connor JJ; J Evans & Son (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078 at 1083E-F; [1976] 2 All ER 930 at 935a-b (EWCA) per Roskill LJ; Handbury v Nolan (1977) 13 ALR 339 (HCA) at 341 per Barwick CJ, 348-9 per Jacobs J, (Aickin J agreed with both Barwick CJ and Jacobs J), at 346 per Stephen J (but dissenting as to whether the evidence established a partly written and partly oral agreement), (Gibbs J agreed with Stephen J); Finucane v NSW Egg Corporation (1988) 80 ALR 486 (FCA) at 520-1 per Lockhart J; Carmichael v National Power at WLR 2049C-50E; All ER 903f-4h per Lord Hoffmann; Lewison, The Interpretation of Contracts, 4^th ed (2007) Sweet & Maxwell at [4.02] and cases there cited. Similarly, finding the terms of a wholly oral contract is a question of fact: Gardiner v Grigg (1938) 38 SR (NSW) 524 at 532 per Jordan CJ (with whom Nicholas J agreed); Torbett v Faulkner [1952] 2 TLR 659 (EWCA) at 661 per Romer LJ; Handbury v Nolan at 346 per Stephen J (with whom Gibbs J agreed); Maggs v Marsh [2006] EWCA Civ 1058; [2006] BLR 395 at [26] per Smith LJ (with whom Moses and Hallett LJJ agreed).

(5) In determining what are the terms of a contract that is partly written and partly oral, surrounding circumstances may be used as an aid to finding what the terms of the contract are: Stones v Dowler at LJ Ex 124; RR 884 per Martin B; Deane v The City Bank of Sydney at 209 per Griffith CJ, Barton and O’Connor JJ; Handbury v Nolan at 341-2 per Barwick CJ, at 346 per Stephen J, at 348-9 per Jacobs J; Liverpool City Council v Irwin [1976] UKHL 1; [1977] AC 239 at 253C-E per Lord Wilberforce. If it is possible to make a finding about what were the words the parties said to each other, the meaning of those words is ascertained in the light of the surrounding circumstances: Deane v The City Bank of Sydney at 209; Handbury v Nolan at 341-2, 346, 348-9. If it is not possible to make a finding about the particular words that were used (as sometimes happens when a contract is partly written, partly oral and partly inferred from conduct) the surrounding circumstances can be looked at to find what in substance the parties agreed: County Securities v Challenger Group Holdings at [7]-[8] per Spigelman CJ.

(6) A quite separate type of contractual arrangement to a contract that is partly written and partly oral is where there is a contract wholly in writing and an oral collateral contract: J Evans & Son v Anthony Merzario at WLR 1083C-E; All ER 934h-5a per Roskill LJ, at WLR 1084H; All ER 936c per Geoffrey Lane LJ; Hoyt’s v Spencer at 144-5 per Isaacs J; Equuscorp v Glengallan Investments at 484 [36] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.’

Update, 23 February 2010: Sydney Morning Herald article here.

Original post: Najem v Maatouk [2010] NSWSC 20 is a great read.  It is a text book example of how not to sue for fees. It also progresses the resolution of the question on which two justices of appeal had previously divided, the third helpfully not deciding, in a previous decision.  The question is whether a solicitor may use the rule that oral costs agreements are void against a client relying on a costs agreement favourable to the client.  No, said Justice McCallum.  The decision also provides an insight into what does and does not amount to ‘evidenced in writing’, the minimum condition for enforceability of costs agreements.

Mr Najem owned taxis.  They got into bingles.  He often needed to sue.  He worked out a deal with a solicitor: regardless of the outcome, he would pay, at the end of the case, a low fixed fee. If there was an order for costs in his favour, the solicitor could take the lot in addition.  The solicitor ran into a bit of trouble with the Bureau and had his practising certificate limited by a condition he work only as an employee.  He took Mr Najem to his new employer, Mr Maatouk.  Mr Najem’s solicitor and Mr Najem agreed that the old deal would still apply.

Time went by and Mr Maatouk became dissatisfied with his employee’s fee-earning performance.  He sent out a stack of bills ‘without any comprehensible identification of the legal services that had allegedly been provided’, purportedly drawn by reference to an hourly rates costs assessment.

Naturally, Mr Najem refused to pay.  The employment of the solicitor, Mr Maatouk’s employee, ‘came to an end’.  Mr Maatouk exercised a lien over the files, and did no further work.  Consequently some of Mr Najem’s suits were dismissed for want of prosecution.  Mr Maatouk sued Mr Najem on the bills.  After a while, he decided instead to seek the NSW equivalent of taxation — an assessment by a costs assessor — of all 46 of his bills.  So the suit for fees was adjourned pending the assessment.  But not before Mr Maatouk had sought to have Mr Najem cited for perjury, and there had been an exchange of notices to produce.  Time may tell that that was not a good bit of karma to lay down.  Neither party produced the documents sought by the other’s notice to produce.  As Mr Maatouk would later say to the costs assessor:

‘Mr Najem has advised the Court that he does not have any of the documents sought in the notice to produce.  This in itself shows casts (sic) a large cloud of doubt over the information and allegations made by Mr Najem.’

What Mr Maatouk omitted to mention to the costs assessor was that in response to the notice to produce served on him he told the court hearing the suit for fees:

‘Those documents were collated ready to be produced to the court.  Some matters of recent events have occurred at my office which resulted in those documents no longer being in my possession.  [inaudible] … elaborate much your Honour.

Q.  Were they destroyed?

A.  I believe so, I don’t have them.  I don’t know where they are.  They were in my car.’

Naturally, Mr Najem told the assessor that there was no hourly rate costs agreement.  There was disputed affidavit evidence.  It was a rumble in the jungle kinda conflict of evidence.  Mr Najem produced costs disclosures from Mr Maatouk consistent with the original deal with his solicitor.  Mr Maatouk produced file copies of costs agreements which the judge assumed he contended had come into operation by implication from the giving of instructions having received them.  Mr Maatouk said Mr Najem’s costs disclosures were forgeries, pointing out that they all ‘mysteriously’ bore the same date and contained the statement, inherently improbable to have been made by a solicitor, that judgment was likely within a week.  Only problem was, the file copies of the costs agreements Mr Maatouk had produced all bore the same date, and some also contained the one week claim.  D’oh! Mr Najem said Mr Maatouk’s costs agreements were forgeries.  The costs assessor must have believed Mr Maatouk over Mr Najem, and issued a ruling.  That fact illustrates the limits of resolving conflicts of evidence on affidavits.

A month later, Mr Najem learnt that Mr Maatouk had been charged with attempting to pervert the course of justice. It was alleged that he had reported the theft of his car in which he had had some papers ready for his case with Mr Najem.  It was found soon afterwards, extensively damaged by fire except for — d’oh! — the boot, which was empty, or so the police said.

Naturally, Mr Najem sought leave to appeal the costs assessor’s ruling.  Mr Maatouk did not give evidence.  The judge thought Mr Najem’s evidence to have been frank and honest.  Guess what? The judge found that there were no hourly rate costs agreements as alleged by Mr Maatouk.

There is something to the judgment other than opportunity for schadenfreude tenuously justifying its inclusion in this newspaper.  New South Wales’s and Victoria’s Legal Profession Acts alike say that oral costs agreements are void.  The judge said:

‘it is appropriate to give some consideration to section 184(4) of the Legal Profession Act 1987. That section provided that a costs agreement is void if it is not in writing or evidenced in writing. However, there is a divergence of views as to whether the section has any application to a costs agreement favourable to the client: see Wentworth v Rogers per Santow JA at [32]; cf Basten JA at [146]; Hislop J not deciding.

64 With great respect to Santow JA, I share the view expressed by Basten JA that s 184 would not be read to include a costs agreement favourable to the client. Before the enactment of that provision, such an agreement required no statutory authority for its enforceability. A consideration of the matters discussed by Basten JA in Wentworth v Rogers at [139] to [146] leads me to the view that s 184 was directed to regulating the enforcement of claims for remuneration by solicitors. I do not think that section should be construed so as to render unenforceable an oral costs agreement favourable to the client. Nothing in the statute suggests that one of its objects was to relieve a solicitor of the obligation to comply with such a bargain.

65 In case that view is wrong, it is appropriate to consider whether the oral costs agreement in the present case was “evidenced in writing” within the meaning of s 184 of the 1987 Act. I have reached the conclusion that it was not. The only documents arguably evidencing the agreement are the seven costs disclosure letters relied upon by Mr Najem. As already noted, there is an issue as to the authenticity of those letters but I do not think it is necessary to resolve that issue.

66 The oral agreement governed all of Mr Najem’s small claims, identifying different amounts to be charged by reference to the amount of each claim. The letters do not amount to written evidence of the terms of that agreement. They do not set out the different rates or identify the determinant as to which rate was applicable. They do not record the term of the agreement that costs were payable only upon completion of a matter; indeed, the letters state otherwise. Accordingly, if (contrary to my view) it is necessary for the agreement to be “evidenced in writing” in order to be enforceable against Mr Maatouk, I am not satisfied that it was.’