Category Archives: Professional Responsibility

Another Costs Agreement Cancelled – [2015] WASC 54

The Supreme Court of WA has cancelled another costs agreement on the grounds of unreasonableness. The decision is Portuguese Cultural and Welfare Centre v Talbot Olivier Pty Ltd [2015] WASC 54.

I am a member of the Costs Committee of the Law Society of WA. Decisions relating to legal costs and the cancelling of costs agreements are of particular interest to me.

The Decision

To give a short background to the decision, the Portuguese Cultural and Welfare Centre was an unincorporated association which operated a community radio station. Mr and Mrs Moleirinho were husband and wife and involved in the running of the Association. They signed three costs agreements on behalf of the Association and also gave guarantees in relation to the payment of fees.

Been January and March 2008, the Australian Communications and Media Authority (ACMA) were considering refusing to renew the licence required by the Association to continue to operate the radio station.

The Association engaged Talbot Olivier to act for them.  The Association, Mr Moleirinho and Mrs Moleirinho entered into three costs agreements with Talbot Olivier.

The first costs agreement was entered into after the ACMA had expressed a preliminary view that the licence would be cancelled. The second costs agreement was made around 13 March 2008 after the ACMA decided to cancel the licence. The third costs agreement was entered into on 20 March 2008 after a resolution was passed by the Association to seek a review of the ACMA’s decision and despite receiving advice the previous day not to seek a review.

The application for review had to be filed by 20 March 2008.

The Applications to Cancel the Costs Agreements

Proceedings were originally commenced by the Association, Mr Moleirinho and Mrs Moleirinho to cancel all three costs agreements. Those applications were dismissed by Hall J: Portuguese Cultural and Welfare Centre v Talbot Olivier Pty Ltd [2013] WASC 91.

After a partially successful appeal, Mr and Mrs Moleirinho’s application in respect of the third costs agreement only, was remitted to be re-determined by the general division.

In the particular circumstances of this case, Corboy J cancelled the third costs agreement. His Honour did not rely on any one particular aspect of the agreement itself or any one particular circumstance preceding the entry into the costs agreement. Rather, his Honour concluded that the sum of all of the circumstances justified the costs agreement being cancelled.

In short, the third costs agreement was cancelled by reason of a combination of:

  1. the advice in relation to the review application was only delivered on 19 March 2008, being the day before the review had to be filed;
  2. the third costs agreement provided for some work which was already covered by the second costs agreement, namely the preparation and filing of the review application;
  3. the third costs agreement was received by Mr Moleirinho during the afternoon of 20 March 2008, meaning that only a very short amount of time was available to consider the costs agreement;
  4. Mr Moleirinho understood, perhaps wrongly, that Talbot Olivier would not file the review application until the costs agreement had been signed;
  5. the filing of the application for review could have occurred under the terms of the second costs agreement;
  6. Mr Moleirinho signed the costs agreement on behalf of his then absent wife; at the suggestion of the lawyer; and
  7. Mr Moleirinho was not given any advice to seek independent advice on the costs agreement.

Comment: Applications to cancel a costs agreement are on the rise. Solicitors should take great care when entering into costs agreements with clients to avoid a subsequent application seeking to cancel their costs agreement. I accept instructions in this area. Contact me by email or by using this link.

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Fitness to Practice – Criminal Convictions and Lack of Candour

I can only imagine what it must be like to do four or five years of Law School, only to be refused admission to practice. It must be soul destroying. Indeed this is why provision exists to apply to the Legal Practice Board (LPB) for an early ruling on matters affecting your suitability to practice, so that you don’t find yourself in that situation.

Jarvis v Legal Practice Board [2012] WASAT 28 is a case which deals with issues relating to whether someone is a fit and proper person to hold a practising certificate.

The facts were that the applicant, Ronelle Jarvis was a person who was eligible for admission as a legal practitioner. There was no dispute that she had attained all the necessary academic qualifications and completed practical legal training.

Ms Jarvis then sought a compliance certificate from the Legal Practice Board. Part of her application disclosed that she had only four previous convictions. One related to giving a false name to Police (1985), two related to stealing as a servant (1989, 2002) and most recently (and perhaps most seriously) obtaining a financial advantage from Centrelink (2008).  The LPB resolved to hold an enquiry to determine whether or not Ms Jarvis was a fit and proper person to be admitted. The LPB formed the view that Ms Jarvis was not ‘currently asset and proper person to be admitted’. Ms Jarvis applied to the State Administrative Tribunal for a review of the decision. The reasons published concisely outline the major events in the Ms Jarvis’ (at least in so far as they relate to the application for admission).

The LPB, at its inquiry, resolved that in relation to the convictions for giving a false name to the police and the earlier stealing as a servant did not on their own lead to the conclusion that she was not a fit and proper person to be admitted as a lawyer. However, Ms Jarvis did not disclose the circumstances leading to her conviction for giving a false name for the Police, which was that she was caught driving on an extraordinary drivers licence. Ms Jarvis had lost her drivers licence for drink driving. This conviction was not disclosed. Furthermore Ms Jarvis had again been convicted for drink driving in 1988 and lost her licence for life in 1995. None of these convictions were disclosed.

The Legal Practice Board took a more dim view of the second stealing as servant conviction and matters relating to Centrelink. The LPB noted that these matters could not be chalked up to a “folly of youth’ with Ms Jarvis being in her thirties at the time. The LPB also took the view that her statements regarding this incident did not show remorse to her employer. Having regard to the Centrelink matter, the LPB observed that she failed to report the existence of the Centrelink debt in her application for admission. The LPB resolved that failing to disclose the debt (although Ms Jarvis considered that a debt to Centrelink was not an infringement on her character) assured that she was not fully understanding of her obligations of candour and honesty. The LPB also considered that by continuing to under report her income she demonstrated a lack of regard for the law and displayed a measure of reckless carelessness was to the honesty of her statements to Centrelink.

The review hearing by the State Administrative Tribunal is a hearing de novo. The Tribunal outlined the principles to be applied and then discussed each of the matters referred to above.

The matters to be considered are:

  1. whether the applicant has the personal qualities of character that are necessary to discharge the role of a lawyer;
  2. whether the applicant has a commitment to honesty and integrity in all of their dealings;
  3. the applicant has demonstrated candour and honesty in disclosing relevant matters in her application, irrespective of self interest or embarrassment;
  4. the applicant has insight into her past conduct and the effect of the her conduct on others;
  5. the past conduct is indicative of the applicant’s current fame or character;
  6. the circumstances identified by the applicant as being causes or contributing factors to her past conduct have been removed or are no longer likely to affect the applicant, such that the Committee can have confidence that such conduct is not likely to reoccur.

The Tribunal’s findings did not differ from the LPB’s as outlined above. Therefore, the Tribunal agreed with the LPB’s decision that Ms Jarvis, is not at this time, a fit and proper person to be admitted to practice.

The only light at the end of the tunnel is Ms Jarvis can apply again in the future.

I am available to advise on cases such as this. Please contact me.

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