Judge Savages Keddies For Misconduct
Article courtesy of the Australian Financial Review – By Alex Boxsell
February 11, 2011
It was the Battle of the Personal Injury Firms in the NSW District Court last Friday, when Stacks scored an embarrassing defeat over rival Keddies Lawyers.
Not even the personal endorsement of Paul “Fatty” Vautin or a $35 million takeover by Slater& Gordon in October spared Keddies from a savaging by judge Andrew Colefax, who found “many disturbing departures by Keddies during the course of their retainer from what I regard as acceptable and proper conduct as a solicitor”.
The whole sorry saga stemmed from the tragic death of the son of Andrew Marshall in a car accident. Three proceedings followed, one a claim against the driver’s insurer, Allianz. Stacks represented Marshall when the Allianz claim was settled in November 2002.
Keddies appeared on the scene as Marshall’s lawyers some years later, having filed a statement of claim on his behalf in December 2007 arguing that Stacks had acted negligently in carrying out Marshall’s instructions to settle the Allianz claim, Colefax said.
Keddies came across Marshall when he was referred to the firm by his psychiatrist in November 2004.
Keddies’ legal eagles scrutinised the Allianz settlement, which Colefax found “was limited to a very small amount for past economic loss and some out-of-pocket expenses” but importantly, had “occurred contrary to Stacks’ express advice and at the insistence of Mr Marshall”.
However, Keddies thought Marshall’s claim against Stacks was a goer, retained a barrister and began proceedings in June 2009.
Keddies said Stacks was negligent because it should have insisted Marshall see a psychiatrist and seek independent legal advice, or otherwise quit the case.
But Colefax found Keddies had breached the Legal Profession Act by taking the matter to trial in 2009.
He was unimpressed that Keddies withheld from Marshall a letter written in July 2009 by its barrister “for months whilst unrealistic settlement offers were made”, despite it advising the claim be abandoned. “This conduct was an unacceptable departure from proper practice,” he said. Among Keddies’ many failures was not providing Marshall with important advice from his barrister, commencing proceedings without Marshall’s express instructions or an appropriate expert’s report, and the failure to advise Marshall of the absence of any legal authority to support his claim, Colefax found.
Keddies was ordered to pay Stacks’s costs and Colefax has sent his judgment to the Office of the Legal Services Commissioner.