Procedural fairness: “Murray letters” considered by Victorian Court of Appeal

B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 (Ormiston, Charles and Batt JJA)

The Law Institute corresponded with the solicitors in this matter between 1998 and October 2000. The CEO Ian Dunn, wrote what is known in the game as “a Murray letter” on 16 October 2000. That is a letter summarising the tentative conclusions of an investigation giving a practitioner a final opportunity to comment before a final decision to lay a charge. The two solicitors in this case were given 7 days in which to respond. One of them replied at length and indicated he did not desire an extension of time, the other did not request an extension. Later, their lawyers took the point that the charge was invalid and the Tribunal’s jurisdiction not properly invoked. The Tribunal found it had jurisdiction. The Court of Appeal had no jurisdiction to entertain an appeal in relation to this aspect of the Tribunal’s decision because, it found, the finding that sufficient time had been afforded was a question of fact, and it had jurisdiction only to hear appeals on a question of law. Nevertheless, the majority ventured some dicta.

In dealing with another ground of appeal, the Court of Appeal had said at [38]:

“The [Legal Practice Act, 1996] introduced … a new regulatory scheme and a new procedure governing the disciplinary process for members of the Victorian legal profession. A comparable regime was introduced in New South Wales by the Legal Profession Act 1987. The New South Wales scheme has been considered in Barwick v. Law Society of New South Wales[16]; The Law Society of New South Wales v. Boland[17]; Walsh v. Law Society of New South Wales[18]; and Murray v. Legal Services Commissioner[19]. In Barwick, Kirby, J. said[20] of the New South Wales scheme –

    ‘It was part of a general reform of procedures for the handling of complaints against legal practitioners outside the inherent jurisdiction of the Supreme Court. The object of that reform was to secure greater transparency in the determination of complaints and to establish new institutions for the process but with balancing provisions designed to afford procedural and other safeguards for the practitioner involved. These safeguards should not be narrowly construed. In its comment on the approach to a new system for handling complaints against legal practitioners, the New South Wales Law Reform Commission remarked that: Lawyers should never be subjected to procedures which arbitrarily or unfairly do harm to their reputations or qualify or remove their practising rights. The Commission makes a number of recommendations … aimed at improving the level of procedural fairness for a lawyer who is the subject of a complaint. For example, the Commission proposes that there be a limitation period on complaints … ‘.

    Similarly in Walsh, McHugh, Kirby and Callinan, JJ. observed[21]

    ‘Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal profession formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed. … The provisions of the Act must be complied with.’

At [46] to the majority said:

  1. … Ground 5 alleges that the tribunal erred in not holding that upon the proper construction of s.151 of the Act, alternatively by law, the RPA was obliged before bringing a charge in the Tribunal to afford the affected practitioner an adequate opportunity to respond to the proposed charge, and in not further holding that any proceeding begun in the Tribunal in disregard of such requirement was vitiated. Ground 6 claimed that the proceeding had not been validly brought against B having regard to the requirement that he respond to Mr Dunn’s letter of 16 October within seven days. Both grounds rely on the practitioner’s entitlement to natural justice, as expounded in Murray, where it was held by the New South Wales Court of Appeal that the legal practitioner’s entitlement to be heard necessarily entailed the right to see a copy of the complaint, and that failure to provide the practitioner with a copy of the complaint in advance and an opportunity to respond vitiated the institution of the proceedings against him.
  2. … It may at once be accepted that the practitioners were entitled to natural justice and to be given reasonable notice of the complaints made against them before charges were laid. It was argued for B that a practitioner under investigation must be given a copy of the complaint and an opportunity to answer it before a charge is laid. The submission was that Mr Dunn’s letter of 16 October 2000 did not comply with the requirements of Murray’s case because the letter did not itemise the dealings alleged against the practitioner or adequately specify the matters of disgraceful or dishonourable conduct alleged against him, did not ventilate all matters of misconduct addressed in the charges subsequently filed and required a response within a period of seven days.
  3. In our view these grounds are not made out and, furthermore, no question of law is in any event involved. The matters alleged against both B and G had been the subject of detailed communications between the RPA and the practitioners over an extended period going back to 1998. The facts involved were not particularly complicated. In substance, it was alleged that in a number of different transactions BĀ and G had mixed their own affairs with their clients, preferred their own interests, acted where conflicts of interest arose with their clients, preferred the interests of one group of clients to another and failed to disclose to clients the true nature of their (the practitioners’) own interests. …
  4. … our view is that neither of grounds 5 nor 6 has been made out. B, who was represented by Mr O’Connor, a solicitor, at the time chose not to complain that the time given was insufficient. In rejecting the claim that inadequate time and particularisation were given, the Tribunal made a finding of fact, and no question of law is in our view raised by these grounds. We accordingly reject them.”

The decision turned on its unusual facts of years of investigations. Before applying the decision to another case, it is necessary to consider all the facts set out more fully in the judgment.

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