Relying on "Information and Belief" in Affidavits

Affidavits play a crucial role in presenting evidence to the court.

These sworn statements are used in various legal proceedings to establish facts and provide testimony.

One of the key aspects of affidavits is the reliance on information and belief.

Reliance on Information and Belief in Affidavits

In some instances, a deponent may not have direct knowledge of certain facts but can still provide evidence in an affidavit based on information received from other sources or their belief in the truth of such information. This is known as relying on information and belief in affidavits.

This concept is particularly important when dealing with interlocutory proceedings, where there may be limited time and access to direct evidence.

A Western Australian Case: An Illustration

The Western Australian decision of Blythe v the State of Western Australia [2008] WASCA 10 offers insights into the practical application of reliance on information and belief in affidavits.

In this case, the affidavit contained hearsay evidence from a former student, but the deponent, Ms. Jorden, failed to identify the student or state that she believed the information provided by the student was true.

The appeal court found that this lack of compliance with the requirements of reliance on information and belief rendered the hearsay evidence inadmissible.

Rule Governing Reliance on Information and Belief in Affidavits

In Western Australia, the reliance on information and belief in affidavits is governed by Order 37 Rule 6 of the Rules of the Supreme Court 1971 (WA).

According to this rule, an affidavit used for interlocutory proceedings may contain statements of information or belief, provided the source of the information is disclosed and the deponent believes the information to be true.

Compliance with the requirements of Order 37 Rule 6 is crucial for several reasons:

1. Ensuring Admissibility: Properly drafted affidavits that adhere to the requirements of reliance on information and belief increase the likelihood of the evidence being admissible in court.

2. Countering or Challenging Evidence: Disclosing the source of the information allows the opposing party to counter or challenge the evidence presented in the affidavit.

3. Potential Prosecution for Perjury: Accurate and complete affidavits are necessary to hold deponents accountable for the veracity of their statements, enabling prosecution for perjury if required.

Lewkowski v Bergalin Pty Ltd

In the case of Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989), the court emphasized the importance of following the proper form for statements of information or belief in affidavits. This form is essential not because of a desire for ritualized behavior but because it clearly indicates the source of the information, states the information, and expresses the deponent's belief that what was said is true. If this form is not followed, there is a risk that drafters of affidavits may produce inadmissible evidence under the relevant rules, as seen in In re J L Young Manufacturing Co Ltd [1900] 2 Ch 753.

The court stated, “Preferably statements of information or belief in affidavits should follow the form 'I have been informed by X and verily believe'.”

Following the proper form and complying with procedural rules ensures that evidence presented is admissible, allowing parties to effectively challenge or counter it and preventing potential miscarriages of justice.

In Blythe v the State of Western Australia [2008] WASCA 10, the primary court did not rule on the appellant's objection to paragraphs 18 and 19 of Ms. Jorden's affidavit. These paragraphs contained hearsay evidence that should have been deemed inadmissible. The appellant's objection should have been upheld, as the affidavit did not comply with the required form for statements of information or belief under the relevant rules (O 37 r 6). The affidavit failed to disclose the identity of the former student and did not state that Ms. Jorden believed what the student said was true.

As Wheeler JA noted in Westpoint Management Pty Ltd v Goakes [2002] WASCA 317, [14], the requirements of O 37 r 6 are essential because they reveal the original source of the hearsay information, provide an opportunity for an opponent to counter or challenge it, and enable prosecution for perjury if necessary.

The Newspaper Rule in Defamation Cases: Insights from Poland v Hedley [2023] WASCA 69

Defamation law is a complex area, balancing the protection of individual reputations against the importance of freedom of speech.

A key aspect in defamation cases involving media defendants is the newspaper rule, which offers special protection to confidential sources in the interests of preserving the free flow of information.

In this blog post, I explore the concept of the newspaper rule and its application in defamation cases, drawing on the recent Western Australian case of Poland v Hedley [2023] WASCA 69.

The Newspaper Rule: Definition and Purpose

The newspaper rule is neither a rule of evidence nor a rule of law, but rather a rule of practice in defamation actions (Poland v Hedley, [86]).

It generally prevents courts from compelling media defendants to disclose their confidential sources of information during the pre-trial process (ibid).

This protection against disclosure exists only prior to the hearing of the action, and not at trial (ibid, [87]).

The rule is grounded in the recognition of public interest in the free flow of information (ibid, [88]).

It supports investigative journalism, a vital ingredient of a healthy society, by allowing journalists to protect their sources' confidentiality, thus encouraging information sharing (ibid).

This protection extends to media defendants in analogous interlocutory applications, such as preliminary discovery (ibid, [89]).

The newspaper rule is designed to protect the identity of informants, not the information itself obtained from them (Poland v Hedley, [90]). However, the rule may protect the information if its disclosure would reveal the informant's identity (ibid).

The court exercises discretion in determining whether to require disclosure of a confidential source during the interlocutory stage, taking into account the interests of justice and any special circumstances (ibid, [91]).

Factors Influencing the Court's Discretion

In deciding whether to require disclosure of a confidential source at the interlocutory stage, the court considers several factors depending on the specific case.

These factors may include the manner in which the information was obtained and whether it was obtained lawfully (Poland v Hedley, [93]).

Additionally, the court may be more inclined to order disclosure if the defendants raise the identity and integrity of their confidential sources as part of a qualified privilege defense (ibid, [94]).

Special Circumstances and the Newspaper Rule

The newspaper rule may be overridden by special circumstances or if it is necessary in the interests of justice (Poland v Hedley, [92]). For instance, if the plaintiff may be left without an effective remedy due to the defendant's statutory defense of qualified privilege, the court may compel disclosure to enable the informant to be sued or joined as a defendant (ibid).

Applying the Newspaper Rule in Poland v Hedley [2023] WASCA 69

The Poland v Hedley case provides a valuable example of the newspaper rule's application and the court's discretion in ordering the disclosure of confidential sources. In this case, the court ultimately ordered the production of audio recordings of communications with the confidential source (Source B) for several reasons, including special circumstances (Poland v Hedley, [106]).

The fact that the identity of Source B was already known to the plaintiff, and that the issue revolved around the content of the communications, counted strongly against applying the newspaper rule to refuse protection (ibid, [98], [100]).

A Closer Look at Bingham v Bevan [2023] NSWCA 86 Decision

A recent decision by the New South Wales Court of Appeal, Bingham v Bevan [2023] NSWCA 86, offers insights into the repercussions of not adhering to the terms set forth in a costs agreement.

Read my earlier blog post here about a previous NSWSC single judge decision in this dispute, which was about the costs estimates aspect of things

In this blog post, I analyse the NSWCA decision and explain the Court’s rationale with respect to the enforceability of costs certificates.

The Bingham v Bevan Case

The Bingham v Bevan case is centred around a dispute between a solicitor (Bingham) and a barrister (Bevan) regarding the payment of legal fees.

The dispute arose from a costs agreement between the parties that contained a clause (cl 4) specifying that the barrister's fees were contingent upon the solicitor recovering funds from the sale of the client's property or through the client's bankruptcy.

The barrister sought a costs assessment, and the costs assessor found that the costs agreement was void due to non-compliance with the disclosure requirements of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act).

Despite the void costs agreement, the assessor issued a certificate specifying the amount of costs to be paid by the solicitor to the barrister.

The barrister filed the certificate and obtained a judgment in the Common Law Division, which the solicitor appealed.

The main issue in the appeal was whether the barrister was entitled to recover the assessed fees, given the contingent nature of the costs agreement and the fact that the contingency had not been satisfied.

Analysis of the Decision

The Court of Appeal, in its judgment, found that the costs agreement was void due to the solicitor's non-compliance with the disclosure requirements under the Application Act.

However, the Court emphasised that the enforceability of the costs agreement was not solely dependent on compliance with these requirements.

The Court also noted that the recovery of the barrister's fees was contingent on the solicitor obtaining funds from the sale of the client's property or through the client's bankruptcy, as stated in cl 4 of the costs agreement.

Since the contingency had not been met, the Court held that the barrister was not entitled to recover the fees.

The Court allowed the appeal, set aside the judgment in the Common Law Division, and ordered the barrister to reimburse the solicitor for the amount paid pursuant to a garnishee order.

Key Takeaways:

These 2 NSWSC Bingham v Bevan decisions highlight the following:

1. Compliance with disclosure requirements: Legal practitioners must ensure they comply with the disclosure requirements set out in the Application Act, as non-compliance can render a costs agreement void.

2. Enforceability of costs agreements: The terms of a costs agreement, including any contingent fee arrangements, must be clear and enforceable. Failure to satisfy the contingencies can render the fees non-recoverable.

3. Costs assessment and judgment: Obtaining a costs assessment and judgment based on a void costs agreement can lead to complications and potential reversal of the judgment, as seen in the Bingham v Bevan case.

4. Importance of clear communication: Legal practitioners should ensure they communicate clearly with their clients and fellow professionals about the terms and conditions of a costs agreement, including any contingent fee arrangements. Proper communication can help avoid disputes and misunderstandings between the parties involved.

5. Consequences of a void costs agreement: It is essential for legal practitioners to be aware of the potential consequences of a void costs agreement, as it may impact their ability to recover fees. In the Bingham v Bevan case, the barrister was unable to recover the assessed fees due to the void costs agreement and the unsatisfied contingency.

Understanding Guardianship and Administration Matters: When does the Need for Oversight Enable the Appointment of a Guardian in Western Australia?

Guardianship and administration matters in Western Australia are governed by the Guardianship and Administration Act 1990 (the Act).

The Act provides for the appointment of guardians and administrators for persons who lack the capacity to make decisions in their personal and financial affairs.

In this blog post, I discuss the role of oversight in guardianship and administration matters and explore the circumstances under which the State Administrative Tribunal of Western Australia (the Tribunal) can appoint a guardian based on the need for oversight.

I examine the recent decision of IZ [2022] WASAT 85 to illustrate how the Tribunal interprets and applies the relevant provisions of the Act in this context.

Legislative Framework

The Act sets out the criteria for appointing a guardian for a person who lacks the capacity to make decisions in relation to their personal affairs.

Section 43(1)(b) of the Act states that the Tribunal may make a guardianship order if it is satisfied that the person:

(i) is incapable of looking after their own health and safety;

(ii) is unable to make reasonable judgments in respect of matters relating to their person; and

(iii) is in need of oversight, care, or control in the interests of their health and safety.

The Act also establishes a presumption of capacity, as set out in section 4(3)(c), which states that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Need for Oversight

In the IZ [2022] WASAT 85 decision, the Tribunal considered the role of oversight in guardianship matters and the extent to which the need for oversight, care, or control could justify the appointment of a guardian.

The Tribunal emphasised that the presumption of capacity must be upheld unless clear and cogent evidence to the contrary is presented.

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Tribunal, however, did not find sufficient evidence to rebut the presumption of capacity.

It concluded that while there was a reasonable concern for IZ's health and safety, there was no clear evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal observed that individuals with the capacity to make decisions regarding their personal and financial affairs are entitled to make decisions that others may regard as unreasonable or unwise, as long as they do not pose a risk to themselves or others (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal also noted that the need for oversight, care, or control should be read in conjunction with the other limbs of section 43(1)(b) and considered as a global assessment of the person's capacity (referencing GG [2021] WASAT 33 at [60(a)-(c)]).

The Tribunal held that the need for oversight, care, or control is directed towards a person's functional incapacity, rather than the cause of the person's need for assistance (referencing GG at [60(i)]).

The Presumption of Capacity in Guardianship and Administration Matters: Does Objectively Unwise Decision-Making Rebut the Presumption in Western Australia?

The Guardianship and Administration Act 1990 (the Act) governs the appointment of guardians and administrators for individuals who lack the capacity to make decisions regarding their personal and financial affairs in Western Australia.

One of the key principles in guardianship and administration matters is the presumption of capacity, which assumes that an individual is capable of managing their own affairs until proven otherwise.

In this blog post, I discuss the extent to which objectively unwise or less preferable decision-making can rebut the presumption of capacity in a guardianship and administration matter before the State Administrative Tribunal of Western Australia (the Tribunal).

I refer to the decision of IZ [2022] WASAT 85 to illustrate how the Tribunal approaches this issue and applies the relevant provisions of the Act.

Legislative Framework

The Act sets out the criteria for appointing a guardian or an administrator for a person who lacks the capacity to make decisions in relation to their personal or financial affairs. Section 4(3)(c) of the Act establishes the presumption of capacity, stating that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Presumption of Capacity and Objectively Unwise Decision-Making

In the IZ [2022] WASAT 85 decision, the Tribunal examined the relationship between the presumption of capacity and objectively unwise decision-making by the subject of a guardianship application.

The Tribunal emphasized that people with capacity are entitled to make decisions that others may regard as unreasonable or unwise (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Department argued that IZ's lack of insight into the reason for her admission and her desire to return to live with her parents were evidence of her incapacity to make reasonable judgments.

However, the Tribunal held that, although there was a reasonable concern for IZ's health and safety, there was no clear and cogent evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal found that IZ was actively managing her own affairs and dismissed the guardianship application.

The Tribunal in IZ cited the observation made in MH, stating that the judgment on whether a person is incapable of looking after their health and safety or unable to make reasonable judgments in respect of matters relating to their person does not depend on whether the Tribunal agrees or disagrees with the person's decisions (referencing MH at [120]).

Key Take-Aways

• The decision in IZ [2022] WASAT 85 demonstrates that objectively unwise or less preferable decision-making by the subject of a guardianship application does not automatically rebut the presumption of capacity in Western Australia.

• The Tribunal emphasizes the importance of upholding the presumption of capacity unless clear and cogent evidence to the contrary is presented.

• This approach reflects the respect for individual autonomy and the right to make one's own decisions, even if those decisions may be considered unwise or less preferable by others.

Understanding Joint Guardianship and Administration Appointments in Western Australia: A Case Study

Guardianship and administration matters in the State Administrative Tribunal of Western Australia (SAT) often involve complex family dynamics and legal considerations.

One question that often arises is when joint guardians and administrators should be appointed.

In this blog post, I discuss the factors that the SAT takes into account when making such decisions, with reference to the Guardianship and Administration Act 1990 (WA) (GA Act) and the recent case of LM [2023] WASAT 15.

Criteria for Appointment of Guardians and Administrators

The GA Act sets out the criteria for appointing guardians and administrators.

Section 44 deals with the appointment of guardians, while section 68 focuses on the appointment of administrators.

In the case of LM [2023] WASAT 15, various family members expressed their willingness to be appointed, either individually or jointly, as LM's guardian and administrator.

The Tribunal, however, had to consider the best interests of the represented person and the suitability of the proposed appointees before making a decision.

Joint Appointments: Pros and Cons

Joint appointments may seem like a fair solution in some situations, especially when multiple family members are willing to take on the responsibility. However, the SAT is cautious when considering joint appointments for both guardians and administrators.

For administrators, joint appointments can pose practical difficulties, particularly regarding banking arrangements and the management of online accounts.

As for joint guardianship, the SAT may consider it only when there is a reasonable expectation that the guardians will be able to work together and reach unanimous decisions for the represented person.

Family Dynamics and Suitability

In LM [2023] WASAT 15, the Tribunal paid close attention to the family dynamics and the ability of the proposed appointees to work together (para. 65). The decision highlighted that joint decision-making may not be successful in situations where family relationships are strained or conflicted.

The Tribunal emphasized the importance of weighing the potential risks and benefits of joint appointments against the backdrop of complex family situations.

Moreover, the Tribunal took into account the potential conflicts of interest that could arise from the appointment of certain family members. In LM [2023] WASAT 15, it was determined that one of the proposed appointees, SC, had a conflict of interest due to his personal interest in his daughters' financial well-being and his duty as an administrator to act in LM's best interests (para. 66). This conflict of interest contributed to the Tribunal's finding that SC was unsuitable for appointment.

In addition to conflicts of interest, the Tribunal also considered the experience and expertise of the proposed appointees. In LM's case (para. 70), the Tribunal noted that her estate involved some complexity, and it was in her best interests for the appointed administrator to have the necessary knowledge and ability to manage her estate effectively.

Ultimately, the Tribunal's analysis of the family dynamics and the suitability of the proposed appointees led to the conclusion that none of the family members who volunteered as guardians or administrators were appropriate for appointment (para. 69).

This unsuitability precluded their sole or joint appointment, prompting the Tribunal to consider alternative options such as the appointment of the Public Advocate and Public Trustee (para. 71).

Public Advocate and Public Trustee Appointments

In cases where no suitable and willing person is available for appointment, the GA Act (section 44(5)) provides that the Public Advocate should be appointed as the guardian.

Similarly, when it is in the best interests of the represented person, the Public Trustee may be appointed as the plenary administrator.

In LM [2023] WASAT 15, the Tribunal concluded that the Public Advocate should be appointed as LM's limited guardian and the Public Trustee as LM's plenary administrator.

These appointments ensured that the guardian and administrator possessed the necessary expertise and ability to make decisions for LM in the foreseeable future.

Key Take-Aways

• Joint appointments of guardians and administrators may seem like a practical solution in some cases.

• However, the SAT carefully considers the best interests of the represented person, the family dynamics, and the suitability of the proposed appointees when making such decisions.

• The case of LM [2023] WASAT 15 serves as a valuable reference for understanding when joint appointments may or may not be appropriate in guardianship and administration matters in Western Australia.

Determining Factors in a s16(4) Costs Application in a Guardianship and Administration Matter in Western Australia

In this blog post, I explore the factors to be considered in determining a s16(4) costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia.

This discussion will rely on the case of Y and CO [2020] WASAT 166 and relevant legislation, including the Guardianship and Administration Act 1990 (WA) (the GA Act) and the State Administrative Tribunal Act 2004 (WA) (SAT Act).

1. The Tribunal's Power to Make Costs Orders

Section 16(4) of the GA Act grants the State Administrative Tribunal the power to order that costs be paid by, or out of the assets of, a represented person if it is satisfied that a party to the proceedings has acted in the best interests of the represented person or the person in respect of whom an application is made [1][21].

The principle in s 87(1) of the SAT Act states that parties usually bear their own costs in a proceeding of the Tribunal [22].

2. Factors to Consider

In determining whether to exercise its discretion to order a represented person to pay another party's legal costs, the Tribunal may consider several factors outlined in Re WA and IA, Ex Parte AA and JA [2011] WASAT 33 [32][59-60].

These factors include:

• Whether the application would have been made without the applicant seeking legal advice;

• The presence of serious allegations of abuse, requiring legal advice and representation;

• Conflict between significant parties that may prevent them from presenting a coherent case without legal assistance;

• The complexity of the application requiring legal advice and representation;

• Whether the application is contentious and unique;

• Whether the application raises a special point of law.

It is important to note that awards of costs pursuant to s 16(4) of the GA Act are not common [60].

3. Acting in the Best Interests of the Represented Person

Section 16(4) of the GA Act conditions the positive exercise of the Tribunal's discretion on being satisfied that the person seeking costs has acted in the best interests of the represented person [33].

However, more than merely acting in the best interests of the person is required to succeed in a costs order under s 16(4) [37].

4. The Amount of Costs Awarded

The amount of costs that may be awarded should be such costs relative to those proceedings as the Tribunal sees fit. The award is not referable solely to the costs incurred by that party [33].

5. The Tribunal's Wide Discretion

The Tribunal has a wide discretion under s 16(4) of the GA Act to award costs, but it should not be read independently of the costs regime in the SAT Act and the starting position that parties bear their own costs [36].

6. Relevant Case: Y and CO [2020] WASAT 166

In the case of Y and CO [2020] WASAT 166, the Tribunal made a costs order of $5,000 under s 16(4) [59].

The reasons for this finding include the applicant (Y) acting in the best interests of the represented person (CO), and that it was unlikely the application, which ultimately benefitted CO, would have been made without legal advice sought by Y [41][46].

Key Take-Aways

• Determining factors in a s16(4) costs application in a guardianship and administration matter in Western Australia involves a careful consideration of various factors and circumstances.

• The Tribunal has a wide discretion to award costs but must be satisfied that the person seeking costs has acted in the best interests of the represented person, among other considerations.

Factors to be considered in determining costs application in a guardianship and administration matter in the State Administrative Tribunal of Western Australia (other than pursuant to s 16(4))

When it comes to costs applications in guardianship and administration matters before the State Administrative Tribunal of Western Australia (SAT), other than pursuant to s 16(4) of the Act, there are various factors to consider.

In this blog post, I discuss these factors, referencing the decision MD [2022] WASAT 45 and relevant legislation, to provide an overview of the key principles and considerations in determining costs applications in such matters.

Starting Point: Parties Bear Their Own Costs

As a starting point, s 87(1) of the SAT Act sets the principle that parties typically bear their own costs in a proceeding of the Tribunal.

This principle was affirmed in RK [2020] WASAT 53 (S) (RK), where the Full Tribunal found that the parties to guardianship and administration proceedings should bear their own costs [10].

Discretion to Award Costs

However, the Tribunal does have discretion to award costs in any proceeding, except as otherwise provided in an enabling Act [11].

This includes the power to order a party to pay the costs of another party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding [12].

In exercising this discretion, the Tribunal must consider all of the circumstances of the particular case and whether it is fair and reasonable for one party to bear the costs of another [14][15].

Key Considerations

Some of the key considerations guiding the Tribunal's assessment include whether:

1. A party has conducted itself in a way that unnecessarily prolongs the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process. This includes where proceedings should not have been maintained against a party because it is clearly untenable, and no reasonable person would have believed they could be successful [16].

2. Costs have been incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings (where the conduct of the party was unreasonable and unfairly caused the increased costs) [16].

Vexatious Proceedings

In the decision of MD [2022] WASAT 45, the term 'vexatiously' was defined under s 3 and s 4 of the SAT Act, with reference to the definition in the Vexatious Proceedings Restriction Act 2002 (WA) under s 3.

Vexatious proceedings are those that are an abuse of the process of a court or a tribunal, instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose, or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose [26].

Section 88(2) of the SAT Act and Costs

While s 88(2) of the SAT Act empowers the Tribunal to order that all or any of the costs of a proceeding be paid by a party, s 88(1) defines 'costs of a proceeding' for this section as those 'other than the costs of a party,' excluding the legal costs sought by a party in a proceeding [28].

Section 87(3) of the SAT Act and Costs

The Tribunal does have the power to order payment of costs by a party under s 87(3) of the SAT Act 'to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding' [29].

However, as noted in Blaskiewicz, discussing Questdale, the legal rationale for ordering costs is not to punish the person against whom the order is made [17].

Key Take-Aways

• In summary, while the general principle in the SAT Act is that parties bear their own costs in guardianship and administration proceedings, the Tribunal does have discretion to award costs in specific circumstances.

• Key factors to consider when determining costs applications include the conduct of the parties, the reasonableness of their actions, and whether the proceedings were vexatious.

• The Tribunal will carefully examine each case, considering all relevant factors, and determine whether it is fair and reasonable for one party to bear the costs of another.

The Importance of Fair and Reasonable Legal Fees: Understanding Overcharging and its Consequences

Overcharging clients is a topic that has been repeatedly scrutinised in the legal profession.

It not only damages the reputation of individual practitioners but also erodes public trust in the profession as a whole.

This blog post provides a general understanding of the issue of overcharging, drawing on extracts from 3 Western Australian State Administrative Tribunal decisions: Legal Profession Complaints Committee and O'Halloran [2013] WASAT 105, Legal Profession Complaints Committee and Park [2017] WASAT 89, and Legal Profession Complaints Commitee and Penn [2015] WASAT 145.

The Vulnerability of Clients

One of the main reasons courts and disciplinary tribunals take a serious view on overcharging is the inherent power imbalance between lawyers and their clients (Veghelyi v The Law Society of New South Wales).

Clients are often in a vulnerable position when making decisions, as they may not know what work needs to be done or what charges are fair and reasonable.

Lawyers, on the other hand, are in a position of advantage, as they can inform themselves of the necessary work and appropriate charges.

This power imbalance and the trust clients place in their solicitors can lead to the misuse of such advantage and potentially result in adverse findings against lawyers by regulatory bodies and tribunals.

The Consequences of Overcharging

Overcharging can lead to significant consequences for legal practitioners, including suspension or striking off from the profession. In the O'Halloran case, the Tribunal found that the practitioner engaged in a course of conduct of grossly overcharging clients over a period of approximately six years. This conduct was considered to demonstrate that the practitioner was not a fit and proper person to remain a member of the profession.

In the Park case, the Tribunal considered overcharging by 15% to 20% of the proper costs of the criminal proceedings to be very serious.

In the Penn case, the Tribunal examined a situation where the practitioner was alleged to have overcharged their client by a significant margin. The initial amount charged to the client for obtaining a grant of probate, administration of the estate, and representation in various proceedings was $69,028.89. However, after an assessment of the work done, it was determined that a reasonable sum of costs for a competent and diligent practitioner should have been $28,959.80.

Although the practitioner argued that the assessment conducted by the Costs Consultant called by the Legal Profession Complaints Committee as an expert witness (Mr. Forbes) was incomplete, and failed to take into account the entire scope of work performed, the Tribunal ultimately accepted Mr. Forbes' evidence as to the appropriate charge.

The practitioner eventually conceded to a revised figure of $51,363.28, which still represented a significant overcharging of $17,665.61 or 25.6%.

The Tribunal found this level of overcharging to be excessive and agreed with the Committee's submission that such misconduct warranted disciplinary action.

The Penn case highlights the importance of transparency and fairness in legal billing, as well as the consequences practitioners may face for overcharging their clients, even when the practitioner disputes the extent of the overcharging.

Key Take-Aways

• The issue of overcharging in the legal profession is a serious matter that not only affects the reputation of individual practitioners but also the profession as a whole.

• Clients are often in a vulnerable position, and the trust they place in their lawyers should not be abused.

• Legal practitioners have a responsibility to ensure they charge their clients fairly and reasonably, and those who fail to do so may face severe consequences, including disciplinary action and damage to their professional reputation.

The Importance of a Concerns Notice under the Uniform Defamation Laws in Australia

The Uniform Defamation Laws in Australia require an aggrieved person to provide a concerns notice before commencing defamation proceedings.

A recent case, Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FEDCFAMC2G 323, highlights the significance of this requirement.

In this blog post, I discuss the mandatory nature of a concerns notice under the Uniform Defamation Laws and the implications of not adhering to this requirement.

The Uniform Defamation Laws

Defamation laws in Australia were historically inconsistent across different states and territories. However, the introduction of the Uniform Defamation Laws (these particular amendments yet to apply in WA) sought to harmonise these laws across the country, recognising the need for consistency in an era where publications can be disseminated instantaneously throughout Australia. The Uniform Defamation Laws introduced several key amendments to defamation law, including the requirement of a concerns notice before commencing defamation proceedings.

Mandatory Nature of a Concerns Notice

Section 12B(1) of the South Australian Defamation Act (DA) mandates that an aggrieved person cannot commence defamation proceedings unless they have provided a concerns notice to the proposed defendant. The concerns notice must specify the alleged defamatory imputations, the serious harm caused, and include a copy of the allegedly defamatory material.

In Hooper v Catholic Family Services, the court found that the plaintiff failed to comply with the mandatory provisions of the DA concerning the provision of a concerns notice, resulting in the summary dismissal of the defamation aspects of her claim.

Imperative vs. Directory Provisions

The High Court in Clayton v Heffron distinguished between imperative (mandatory) and directory provisions in the context of statutory requirements. Imperative provisions require strict compliance, with non-compliance rendering the resulting action null and void, while directory provisions do not have such fatal consequences, although substantial compliance is still necessary.

The court in Hooper v Catholic Family Services agreed with Gibson DCJ's view in Teh v Woodworth that section 12B(1) of the DA is an imperative provision, emphasizing the use of the word "cannot" in the provision.

Consequences of Non-Compliance with the Concerns Notice Requirement

Failure to comply with the concerns notice requirement can result in the dismissal of the defamation aspects of a claim, as demonstrated in Hooper v Catholic Family Services. The court in M1 v R1 also held that leave could not be granted to retrospectively validate defective concerns notices under the Uniform Defamation Laws.

Key Take-Aways

• The Hooper v Catholic Family Services case serves as a reminder of the importance of complying with the mandatory concerns notice requirement under the Uniform Defamation Laws in Australia.

• Failing to provide a proper concerns notice can lead to the summary dismissal of defamation claims, and such defects cannot be retrospectively remedied by amendment.

• As such, it is essential for those pursuing defamation claims to ensure strict adherence to the concerns notice provisions of the DA.