I am seeking some assistance in relation to the difference between negligence and wrong-doing.

I made some formal complaints to the Legal Services Commission about the actions of my Legal representatives in the handling of my family’s case against the Department of Education.

Firstly, they didn’t present crucial information to the Administrative Decisions Tribunal (ADT), and in particular the fact that the matter was back before the ADT because the Department didn’t honour the agreements that they had made on the morning of a previous hearing to provide certain documents etc. These agreements are confirmed in writing by the Crown Solicitors office.

My legal representatives didn’t tell the Judiciary Member that the matter was back before the Court because the Department failed to honour their agreements and therefore he didn’t award us the documents and said that it was an unreasonable diversion of resources!

The Solicitor/Barrister also didn’t ask for costs despite me asking them in writing and verbally on many occasions. We believe that since we were forced back before the ADT because the DET had not honoured their agreements that it would be regarded as special circumstances and that we would be awarded costs.

Costs amounted to $25,000.

The Legal Services Commission has responded in part by saying this:

“I appreciate that many people who find themselves dissatisfied with the standard of service they have received from a legal practitioner look to my Office and the disciplinary bodies with an expectation that we can resolve disputes that raise negligence (rather than wrong-doing that would amount to actionable misconduct)”

The scope of the power conferred on this Office as a regulatory body cannot supersede or undermine the jurisdiction of the courts. Where possible, we attempt to assist the consumer resolve service (not conduct) issues via a mediation process where it is made clear to all parties that there is no prospect of disciplinary action being taken”.

We allege that the Solicitor/Barrister didn’t act on written instructions and they breached the agreement/contract. This does not appear to attract disciplinary action?

Education - Keeping them Honest
http://jolandachallita.typepad.com/education/

Jolanda
You now must lodge a complaint to the NSW Legal Commisoners office.
They have taken over these type of complaints in place of the law Society.
It is said to be more inderpendant.
Attach a copy of the written letters from you indtructing them to ask for costs.
You will also eventually need to obtain a transcript of the case to show they did not ask for costs.
I would suggest you try to get the transcript BEFORE you lodge the complaint.
Its a dirty world we live inand these things tend to get lost at times.
Looking at your costs of twenty five thousand a copy of a transcript would be very expensive indeed.
However the part you want will be in the last few pages at the summing up of the lawyer when he OUGHT to have asked for costs.
Also do you have a copy of the judges orders?
Often they will reserve costs.
It may be cheaper to apply for a copy of the court tapes.
It will still cost you but not as much.
DO NOT tell them why you want the tapes.
Listen to the whole of the tapes so they cant argue you cant show at NO time did he ask for costs.
Stick with it.
Dont discuss the actual case - JUST the cost issue.
If you do your homework right you will be ok.
You will have to be patient and determinded- which I know you are.
I am sorry this has happend but I admire the fact your not just lying down taking it.
Clearly if what you said are the facts you have a case against the lawyer for negligence.
Good Luck and yell if you have any more questions.
PS Off post but did you hear the Government are looking at making Australia a Ritual Slaughter Country? Cant hear Andrew either.
I remember how everybody bagged you when you opended the thread about Halal Food. how right you were!

I am sure you will provail with this legal matter making life better for others who follow you.

The lack of detail makes it difficult to be very helpful, but a few things I note:

You were dissatisfied with the failure of counsel or your solicitor's to put certain matters to the court. Without a lot of detail I couldn't comment on whether they were correct to disregard certain matters. Lawyers owe their first duty to the court and are obliged by that duty only to bring relevant substantial matters to the court's attention lest the court's time be wasted. Most lay people don't understand that just because they are paying they don't get to call all the shots. Lawyers aren't always happy about this either, but if they ignore their duty to the court in favour of the their client's interests they can face disciplinary action. The point is, lawyers are bound by rules not to bring legally irrelevant material before the court, even if their client requests they do so.

Your unhappiness, perhaps also indicates that you were unsuccessful in your action, or at least were less successful than you expected.
Your lawyer's failure to request costs probably reflected a result that would have made favourable costs orders inappropriate.

Good luck with your action, but don't proceed on an assumption your lawyers were treating you with contempt. Do some research and you may find your lawyers had good legal reasons why they were unable or unwilling to follow your instructions.

Kalin
Asking for orders for costs to be made IS up to the client to request and its her God given right.
NO Lawyer is put in a position he has to make a call if he should or should not ask for costs.
ALSO she clearly said she put it in writing.
So he has ACTED against his clients intructions!
Show me where in the manual that is excepted.?>
I agree many Lay people do not understand some of the mumbo jumbo.
However She said she had intructed in writing the council ask the for costs.
If she can>
A Prove that. B Prove it was not done she has a clear case for negligence.
You and I both know they will do everythiing a throw tall poppies at her to try to bully and confuse her.
But if shes keep EVERY Phone call from now on and every! single bit of corrospdence AND keeps in to the commission she will be ok.
Even if she has to end up at the attorney General and registra of the court and or the media.
The only person who makes a call on asking for costs IS the client

Kalin, I see what you are saying. PALE, Kalin's point is that if the lawyers knew that the rules were that costs would not be awarded, then they could be in a great deal of trouble in wasting the courts time asking for them. I had a bit of a look into this last time Jolanda brought it up, and it was my conclusion that the AAT (where the hearing was), generally works on the basis that each party cover their costs. That is, costs are not awarded.

Jolanda, negligence requires that the responsible party commit or fail to commit an act where it would be reasonably forseeable that you suffer a loss, AND that you did in fact suffer that loss. You can then pursue them for neglience. Its been 10 years since I studied it, but that's the overall gist of it.

My two bob's worth? 1. Get a legal opinion on whether costs are normally awarded under a FOI action by the AAT. To save additional costs, you could probably approach a court registrar or the like under the guise of trying to determine what this would cost you if you were to proceed with the action (that you have already taken).
2. If you find out that costs SHOULD have been awarded (not your opinion, but someone independent's), then consider undertaking a negligence action. You may be able to pursue this in the AAT (although claims amount might be too high - I cant remember the limit). If you can use the AAT, then you dont need a lawyer (and perhaps thats why costs wouldnt have been awarded to you) to represent you, you can represent yourself. If you cant use the AAT, then consider an approach directly from another lawyer, with the threat of legal action. Usually firms try to avoid bad publicity, so would be inclined to settle, particularly for small amounts (as this would probably be for them).

Thanks all for replies.

In the case of matters before the ADT apparently costs are only awarded if there are 'special circumstances'.

When the matter was before the ADT the first time the Magistrate said that she would note on file that the integrity of the Department was being challenged and that if the Department didn't honour their agreements that I would have to file fresh FOI applications. I agreed not to go to hearing on that day on the belief that the Department would honour their agreements. They did not.

I also had to take the matter back to the ADT because the DET destroyed documents that were specifically requested to be set aside under FOI and because I couldn’t get those documents the Ombudsman refused to investigate the matter. I had to request other documents to prove the same thing.

Surely this would be considered 'special circumstances'?

The Legal people now say that because I wasn't successful in that one particular aspect of the production of documents (the Judiciary member stating that it was an unreasonable diversion of resources) that I wouldn't have been successful for costs. But the solicitors did not act on instructions in relation to letting the Judiciary member know that the Department had made agreements to give us these documents before and in relation to our request for an order for costs.

I have the transcripts. There was no request for an order for costs.

The problem is that whilst I can apparently sue for negligence, for that I need money and I have been told that the amount it would cost us wouldn’t make it worthwhile. The Solicitors took all our money and we have nothing left. We just wanted the Legal Services Commissioner to help us get our costs back from the Solicitor so that we can get another solicitor to do what we had instructed them to do in the first place. They say that they can cannot help us and our only option is to sue. It just doesn’t seem fair.