Peter A Clarke

Abraham Lincoln had good advice about writing a letter when angry. Write the letter, you will have a good time getting your feelings onto paper and feel the better for it. Leave it overnight. Return the next day, burn the letter and writer another. Good advice , bad for defamation lawyers. It should be mandatory for lawyers who put pen to paper in anger.

There can be a fine line between being forthright and acting without fear or favour on behalf of one’s client and being offensive, provocative or, the using the catch all phrase, bringing the profession into disrepute. The Full Bench of the ACT Supreme Court considered this question in DAVID LANDER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY, The court reviewed a decision of the Legal Practitioners Disciplinary Tribunal that David Lander, had by statements made in a letter to the Chief Executive of the ACT Department of Education and Training was guilty of unsatisfactory professional conduct.

The letter (republished in full at par 4) leaves very little need for explanation. The following extracts demonstrate why it prompted a complaint Read the rest of this entry »

In Sopov & Ors v Kane Constructions Pty Ltd the Court of Appeal again traverses the well worn path of applications for stay of execution. The applicants sought a stay of a Court of Appeal decision pending a special leave application to the High Court. I most recently analysed the approach to stays by the Court of Appeal in my post on Gangemi v Osborne.

In this proceeding the applicants/appellants sought to distinguish a stay application to the High Court from other stay applications, submitting that the former did not require special or exceptional circumstances (par 45). The other bases for the application, which constituted exceptional circumstances were:

• the applicants did not have the resources to pay the judgment debt and their accountant said they would face bankruptcy if the orders were enforced. This meant they could not prosecute their appeal (par 45);
• there was a substantial prospect that special leave would be granted (par 46);and
• the respondents had already received substantial monies (par 46)

At paragraphs 52 & 53 their Honours restated the well settled proposition that the principles applying to stays pending a High Court special leave applications do not differ from other stay applications, stating: Read the rest of this entry »

Prolonged delay between issue and hearing on a damages/liquidated sum claim often means a significant interest component in a final award for a successful plaintiff. That can be the subject of a significant argument and separate determination, as the Court of Appeal did in Giller v Procopets (No 2) [2009] VSCA 72 and, a case I was and remain involved in, Walker & Anor v Hamm & Ors (No 2) [2009] VSC 290. Both decisions carefully and clearly set out the applicable principles associated with the award of interest and when delay or other factors justify adjusting the period of time over which interest should be calculated and/or varying the rate.

In Kalenik v Apostolidis & Ors (No 2) Hargrave J again considered those principle. The default position is

“..interest ‘must’ be ordered for the whole of the period after the issue of the writ unless ‘good cause Read the rest of this entry »