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William Collins
24 March, 2005  
Lawyers as litigants

Inevitably there’s amusement to be had when lawyers are the subject of too much attention – such as being chased by disaffected clients, getting their munificent legal aid funding cut off, or having the stipes throw the book at their beastly language

Good news. Money set to flow against the order of nature

The High Courts decision (6:1) in DOrta-Ekenaike v Victoria Legal Aid gloriously affirming Giannarelli v Wraith on counsels’ immunity for in-court and related work provoked a reassuringly commendable display of swift leadership.

The very next day, Victorian Bar chairman, W. Ross Ray QC, despatched a circular reminding members that when the 2004-2005 master policy for the compulsory layer of professional indemnity insurance for Victorian barristers was negotiated, it provided that in the event of a favourable High Court decision in the then pending DOrta-Ekenaike case, there would be a reduction in that years ghastly premiums.

The chairmans missive advised that the bar had already asked the insurer to cough up, by March 24, 2005, the amount of the reduction with applicable stamp duty and GST so that the bar could remit a pro rata refund (as yet unspecified) to the starving troops.

Tales of the lash I: removal from the VLA panel reduced slightly

imageIn 1995 Gabriel Kuek, solicitor, and David Perkins of counsel, experienced practitioners in these parts, accepted a referral from Victoria Legal Aid to defend a Cambodian gentleman, Meng Kok Te, in a County Court drug trafficking case.

When sentencing Te in mid-1996 Judge Murray Bryon Kellam (translated to the Supreme Court in January 1998), took a very dim view of the conduct during the trial of both Kuek (who, coincidentally, once worked for legal aid in Victoria) and Perkins.

Kuek had unilaterally withdrawn his and Perkins services on the eleventh day of the trial. This was after an earlier staggering 33 days devoted to preliminary defence points. Kuek was dissatisfied with the amount of legal aid funding and wanted a second transcript and money to cover his cost of perusal.

He told Judge Kellam that he was simply not prepared to carry on without proper funding and he didn’t wish to be personally liable for Perkins’ fees if the trial could not proceed properly.

There was an extraordinary exchange between the trial judge and Kuek. The judge asked the solicitor to clarify the ambit of his instructions from legal aid. Kuek said he was not there to answer questions. Kellam pressed him, asking who had withdrawn Perkins’ instructions. Kuek refused to tell.

However, the hearing later resumed after funding was assured for a 15-day trial, including the provision of transcript. Kuek told the judge he would not act for the accused because VLA had not funded him to read the transcript.

Te appealed unsuccessfully to the Court of Appeal (once again represented by Perkins instructed by Kuek) on which occasion Phillips JA offered up this peroration about counsel:

Again and again it has been pointed out of late that counsel must take responsibility for the way in which they conduct the defence of an accused. Here, as is common, the defence was being conducted at the expense of the public purse and yet counsel appears to have disregarded altogether his responsibility to conduct the defence with expedition. I do not mean that the defence must therefore be skimped or that points which ought to be taken should not be taken; but points which are to be taken must be taken appropriately and time not spent inappropriately. Here, time was wasted, and in retrospect quite obviously wasted. That cannot be tolerated if others, with an equal claim on the public purse, are to be represented. That was the burden of remarks made by the learned trial judge after sentencing the applicant and they are remarks in which, if I may say so with respect, I fully concur: [1998] 3 VR 566 at 579.

Mr Tes saga continued. On September 11, 1998 the High Court declined to grant special leave. Thereafter, Te, represented by Access Lawyers (the new name of Kueks firm), was engaged in a long battle to defeat the Minister for Immigration and Multicultural Affairs who had decided that Te should be deported under the criminal deportation provisions of the Migration Act 1958. Te twice took this fight, unsuccessfully, to the High Court.

In the meantime, in late 1997, VLA responded to what had occurred in Tes County Court trial by notifying Kuek of its intention to remove his (and his firms) name from the VLA referral panel.

Kuek exercised his right to show cause and the matter went before an independent reviewer, former County Court judge, Martin Ravech QC, after Kuek had successfully obtained an order disqualifying another reviewer for ostensible bias.

Kuek and VLA had been locking horns in other Supreme Court proceedings, in some of which he was represented by Perkins: [1999] 2 VR 331; [1999] VSC 158; [1999] VSC 447.

In late 2001, after a long hearing, Ravech decided that Kuek should be removed from the referral panel for four years.

The following year, Nettle J in the Supreme Court effectively upheld Ravechs decision, but found that, if as a matter of law, it was for him to determine the period of removal, he would set something less than four years, but … not a great number less than four years.

Then on March 15, 2005, the Court of Appeal decided that Nettle had erroneously characterised the nature of the appeal right and that he should have considered the period of removal afresh.

In giving the leading judgment our old friend William “Silver Tray” Gillard AJA remarked, somewhat plaintively, that the court had suggested to the parties that they should attempt to agree, if the court was of the view that the trial judge should have decided the period of removal himself, that the appeal be allowed and the substitution of an order that Mr Kuek’s name be removed for a period of something less than four years … As things have turned out, Mr Kuek’s removal has exceeded three years … Unfortunately, the parties could not agree.

By then, Kueks name had been removed from the panel for more than three years and five months. The Court of Appeal set aside the order for four years removal and substituted a period expiring on March 1, 2005.

Tales of the lash II: attack on cowardly tribunal member leads to three months suspension

In the meantime, David Perkins, a famous litigant in the Supreme Court, was well and truly immersed in disciplinary hot water in another case.

On September 16, 2004, the Legal Profession Tribunal had reprimanded him, suspended his ticket for the period December 25, 2004 to March 25, 2005, and ordered him to pay the Victorian bars costs fixed at $30,000. See Legal Profession Tribunal

These orders followed findings that Perkins had been guilty of two charges of misconduct arising out of a celebrated fiery exchange in October 2000 with VCAT member, Robert Davis.

Perkins had accused Davis of treating him in his capacity as counsel in a dishonest … utterly disgraceful … bigoted way, and of having demonstrated craven cowardice. He wanted Davis to disqualify himself from the hearing.

Strong words indeed, and manifestly far too strong. Another VCAT member, Judge F.G. Davey, had earlier found that, in assailing Davis, Perkins had thus committed a statutory contempt of VCAT and fined him $2,500 – reduced from $5,000 because the Perky one had apologised.

In The Prahran Magistrates’ Court, in unrelated proceedings in December 1996, Perkins was found guilty of offensive behaviour and resisting police. He was put on a good behaviour bond and fined $500. The County Court later upheld his appeal against the offensive behaviour conviction.

The magistrate heard that Perkins was arrested in Kent Street, Hawthorn at 2.10 am wearing make-up and an unbuttoned dress which exposed his genitals. His lipstick was smeared.