Stephen Warne on professional negligence, regulation and discipline around the world

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Summary judgment in a disciplinary prosecution?

May 22nd, 2015 · No Comments

I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here.  Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS [2015] VCAT 649).  The answer, according to VCAT’s President, Justice Garde?  Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: [Read more →]

→ No CommentsMore articles on: Discipline · Evidence · Legal Services Commissioner · procedure · VCAT Act

Lawchestra’s third concert: an afternoon at the opera; Robert Dora’s Symphony to an ANZAC

April 23rd, 2015 · No Comments

The Lawchestra is holding its third major concert.  To recap, we played a symphony and some other straight orchestral pieces in the first, and nailed it.  Then we played an ambitious programme centred on a beautiful performance of Rachmaninov’s second piano concerto by Natasha Lin.  Now, we’ve teamed up with the Opera Studio of Melbourne, an elite training ground for future opera stars, to bring you the entertaining bits from the vast world of opera.  Please do come (more below).  Book here or, if you have no sympathy for the organisers who need the reassurance of advance ticket sales, pay at the door.

And there’s another thing.  Our wonderful conductor, Robert Dora, has composed a symphony (‘Symphony to an ANZAC’).  One of his other orchestras gave it its world premiere the other weekend and it will be broadcast between 11 a.m. and noon on ANZAC Day on 3MBS. I’ll be listening.  You can hear a snippet here.  Performances of new symphonies composed in Melbourne are a rarity.  And this one is approachable and wonderful: tonal, brooding, Shostakovichesque [Read more →]

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Legal Services Commissioner seeks to overturn privilege against penalties

April 7th, 2015 · 1 Comment

There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination.  It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of argument identifying in broad terms what is in issue.  And even if such an order is made, compliance will not require the foreshadowing of any evidence or the admitting or denying of any facts.

The other day, a full frontal attack by the Legal Services Commissioner on the privilege in disciplinary prosecutions of solicitors did not result in it being distinguished out of existence.  Though there was no contradictor in the hearing, the President of VCAT, Justice Greg Garde, gave the challenge short shrift in LSC v Spaulding [2015] VCAT 292.

Since practitioners started increasingly exercising their right to stay silent after the disciplinary investigation has concluded and before the conclusion of the Commissioner’s case, the Commissioner has begun increasingly to seek orders for the service of a notice to admit, despite the absence of any rule-based regime in VCAT governing the consequences of non-response to such notices.  Some practitioners have consented to such orders and VCAT has made them.  There may be grounds to review decisions in such cases where the practitioner did not ‘waive’ the privilege, since President Ross said:

‘in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit.’

Waiver as a concept in the law generally requires a high level of deliberate abandonment.  No doubt for that reason, the Commissioner began some time ago to alert practitioners to the existence of the privilege when proposing such orders.

President Garde has also made clear that the Tribunal itself has a duty ‘to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege.’

The President also observed that many professionals will wish to make admissions if for no other reason than to be seen  to be appropriately cooperative, and to attenuate the issues and so diminish the costs which will be payable if the practitioner loses.  My clients often make extensive admissions, sometimes make denials, but often remain silent in relation to some issues and strenuously resist the characterisation of such silences the matters about which they have stayed silent as ‘denials’.  There is, however, nothing to be gained from consenting to an order to provide a response to a notice to admit.  When, as I have found to be the case, the notices are framed in a manner which purports to graft onto VCAT’s procedures a presumption of admission in the event of non-denial, great procedural uncertainty is generated, because, unlike in the state courts, there are no rules of procedure which provide a legal basis to generate such an admission.  And it will often be more convenient for the practitioner to craft the admissions in the form he or she considers most appropriate, possibly in a discursive letter, and at a time convenient to him or her.  Furthermore, the notices to admit usually track the allegations in the Application itself extremely closely, regardless of the admissions made during the investigation in correspondence which is annexed to the Application, so that the requirement to respond to the notice to admit is akin to a requirement to serve a defence, and the drafting, filing and service of the notice to admit generates a substantial cost on a party-party basis.

Finally, for some reason, no one ever seeks orders to serve notices to admit on the Commissioner.  If, for some reason, one were to consent to orders for the provision of a response to a notice to admit, it would seem appropriate to me to reserve a right to reciprocity. [Read more →]

→ 1 CommentMore articles on: Discipline · doctors · duty to court · Evidence · Legal Profession Act · Legal Services Commissioner · litigation ethics · natural justice · Penalties privilege · procedure · prosecutors' duties

Suspensions which are not suspensions and orders which are not orders

March 25th, 2015 · No Comments

VCAT’s latest decision to come to my attention, of Member Elizabeth Wentworth, involved another solicitor who did not lodge tax returns over an extended period. He was suspended from practice for 12 months, but the suspension was suspended provided he did not breach certain conditions in the three years after the orders.  If he does, then the Commissioner may apply for the suspension of the 12 month suspension to be lifted so it comes into operation. Member Wentworth decided to leave what exactly would happen in the case of a breach to the discretion of the any future Tribunal constituted to consider it rather than providing automatically for the suspension of the suspension to be lifted.  Legal Services Commissioner v GB [2015] VCAT 254 is interesting to me for six reasons: [Read more →]

→ No CommentsMore articles on: amendment · common law · Discipline · Dishonesty · fraud · Legal Profession Act · Misconduct · Practising certificates · procedure · Suspension

Can a legal regulator rescind a decision to bring disciplinary proceedings

March 21st, 2015 · No Comments

The Supreme Court of Tasmania has made an important ruling in  Legal Profession Board of Tasmania v XYZ [2014] TASSC 33 about the finality of decisions made by legal regulators at the end of disciplinary investigations.  The decision suggests that in those jurisdictions with similar statutory provisions, until a disciplinary prosecution is launched, such decisions may be less final than I suspect many lawyers in Australia have previously believed.  A decision of the Victorian Court of Appeal, which related to a different situation where one of two courses following a disciplinary investigation was gone down and completed and the professional regulator sought subsequently to go back down the alternative course, was distinguished: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301. [Read more →]

→ No CommentsMore articles on: amendment · autrefois acquit · Discipline · Legal Profession Act · Legal Services Commissioner · procedure · Professional regulation · regulators' duties

Solis who fail to tell client about settlement offer immune from suit

March 5th, 2015 · No Comments

Kendirjian v Lepore [2014] NSWDC 66 is only a decision of the District Court of NSW, but it purports to apply law binding on the judge, namely that identified in the NSW Court of Appeal’s decision in Donnellan v Woodland [2012] NSWCA 433.

The following facts were presumed to be true for the purposes of a summary judgment application brought by the defendant solicitor exclusively by reference to advocates’ immunity.  A man was advised his claim for personal injury was worth about $1.2 million.  Personal injury proceedings were commenced. The defendant offered to settle for $600,000 plus costs.  The man’s solicitors failed to advise him of the offer and rejected it.  When the man obtained about $310,000 plus costs at trial, he sued for the difference between his position after the trial and an appeal and the position he would have been in had he been informed of the offer, which he said he would have accepted.

The Court summarily dismissed the suit.  This passage should be carefully considered, unfortunately, by any plaintiff considering suing a lawyer for negligence in litigation, especially when the law of NSW applies, and especially when it is alleged that but for the negligence, a different final or interlocutory result would have obtained: [Read more →]

→ No CommentsMore articles on: Advocates' Immunity · Barristers' immunity

Can an administrative agency determine that a crime has been committed?

March 4th, 2015 · No Comments

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, the High Court considered when an administrative agency can make a determination of the commission of a crime.  The case arises out of the sorry saga of two Today FM presenters impersonating the Queen and Prince Charles in inquiries of the hospital in which the Duchess of Cambridge was a patient.  ACMA conducted an investigation and published a preliminary report expressing the ‘view’ that Today FM had used its broadcasting service in the commission of an offence under the Surveillance Devices Act 2007 (NSW).  Commission of an offence in the course of use of a broadcasting service was a breach of the licence and carried with it the possibility of its revocation: s. 8(1)(g) Australian Communications and Media Authority Act 2005 (Cth). The Court said of ACMA’s ‘view': No worries; full steam ahead, overturning a unanimous decision of a bench of the Full Federal Court presided over by its Chief Justice, and restoring the trial judge’s conclusions.

There are no doubt implications for Legal Services Commissioners and other disciplinary investigators where misconduct is defined to include the engaging in of criminal offences.  Under the uniform legislation to come into force in Victoria and NSW this year, Legal Services Commissioners will become decision makers and have the power to impose fines for professional misconduct.  I have blogged before about various cases in which a related question has arisen, of the appropriateness of administrative tribunals making determinations of the commission of offences, not with criminal consequences but with penal disciplinary consequences. [Read more →]

→ No CommentsMore articles on: Criminal liability · Discipline · Legal Services Commissioner · Misconduct · National Profession Uniform Law

More on the constraints on the use of information obtained under statutory powers

February 10th, 2015 · No Comments

In Flori v Commissioner of Police [2014] QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force.  A criminal investigation was launched as a result of the findings of the disciplinary investigation.  A search warrant was granted in aid of the criminal investigation, and executed.  The sergeant’s computers were seized from his home.

The evidence was incriminating: the email address used to leak the photos was associated with his computer.  No prosecution ensued.  Instead, disciplinary proceedings were issued.  The prosecutors sought to use the evidence seized in the search warrant.  The policeman sought a declaration that the evidence was inadmissible.  The Supreme Court of Queensland granted the declaration: examining the scheme of the statute which authorised the search warrant, Atkinson J found an implied restraint on the use of the information otherwise than for the purposes of the criminal investigation in aid of which it was granted.

This is an application of established principle (see these previous posts: one, two, three, four), but it is a nice case because its scope is confined exclusively to this issue, and it occurs in the context of a statutory disciplinary regime.  The discussion of the law, which commences at [27], is set out in full below. [Read more →]

→ No CommentsMore articles on: Criminal liability · Discipline · Evidence · procedure · prosecutors' duties

2014, not such a great year (beheadings, ebola, deforestation)

January 30th, 2015 · No Comments

Russia Back, after that long excursion (structure is for advices; meandering is for holiday blog posts), to aviation. In the middle of the year, 414 people died in plane crashes within a week when a Malaysian Airlines and an Air Algerie aircraft crashed in Ukraine (killing 27 Australians) and Mali respectively. The former was shot down and the question is to what extent Russia was directly involved. [Read more →]

→ No CommentsMore articles on: Human rights and international law · Rule of law

2014: not such a great year (offshore imprisonment of people who are not alleged to have done anything wrong, far away from journalists and Human Rights Commissioners)

January 22nd, 2015 · 2 Comments

I have already covered the 2014 exploits of the Minister for Making Refugees Disappear vis-a-vis, especially, the poor Tamils. As I write, dreadful scenes are playing out in one of the regional Australian centres for the infliction of misery where we imprison people without the slightest involvement of the judiciary who have done not the slightest legal wrong in conditions of the utmost secrecy justified by a ‘war’ which is not a real war.  Wonder where we got that model from!

There are advantages in having private contractors at the beck and call of the Minister for Making Refugees Disappear do the dirty on the poor bastards fleeing terror and horror in an extra-territorial malaria-infested island in a desperately poor nation where violent thugs who don’t like gay or sub-continental or middle eastern refugees much abound.  For example, the Solicitor-General advised the government that Gillian Triggs, Chair of the government’s own Human Rights Commission, and Emeritus Professor at the University of Sydney, cannot investigate complaints about the trashing by Australians of the human rights of poor bastards going mad in sub-standard jails staffed by private security guards instead of public servants.  There was no rush that I heard about to plug this alarming alleged loophole in her governing statute.

2014 saw MP Andrew Wilkie ask the International Criminal Court to investigate Tony Abbott and Scott Morrison and in fact the whole cabinet for crimes against international law in their treatment of refugees.  I have no idea what the outcome of that was.

Reza Berati was killed — murdered in all likelihood — on Manus Island.   [Read more →]

→ 2 CommentsMore articles on: Human rights and international law · Uncategorized