Update: 14 October 2007 The Court of Appeal refused leave to appeal, and the High Court refused special leave to appeal too, on 5 October 2007.
In Victorian Bar Inc v DAP,  VCAT 2293 Judge Bowman, Tony Southall QC and T Harper suspended the barrister’s practising certificate for 6 months and ordered him to pay costs. He had been found guilty of misconduct constituted by breach of a prohibition in the Legal Practice Act, 1996 on barristers receiving trust monies (otherwise than through their clerks) (s. 178). Breach of the provision was also amenable of being prosecuted as a crime, punishable by up to 2 years’ imprisonment. That that was so was considered to be a measure of the seriousness with which Parliament viewed the offence.
The barrister was impecunious, and this was relied on by the Bar as a reason why a fine would not be an appropriate penalty.
The Full Tribunal relied on non-cooperation and lack of contrition to explain the differences between a case of Victorian Bar Incorporated v JI (No. T0067 of 2003, 15 October 2003) where the barrister had wilfully breached the prohibition on receiving trust monies and received a fine of $5,000 and a reprimand.
Controversially, the Tribunal also mentioned several times that in JI’s Case the misconduct was constituted only by a breach of Bar Rules, whereas DAP was found guilty of a breach of the Legal Practice Act, 1996. The logic is unappealing. Surely it is the conduct which is the issue, not the place where it is proscribed.
The Full Tribunal also took into account that the client had been dissatisfied. They expressly recognised that the client evinced no dissatisfaction with the fact that the monies had not been paid into a trust account. It is apparent from the previous rulings that the dissatisfaction was the predictable one: the quantum of the fees. But it is apparent from the previous rulings that the client was unwilling to give evidence to support the Bar. The Full Tribunal had no means of ascertaining whether the supposed complaint of the complainant client was merely a bargaining chip in a fee dispute (see SPB v Law Institute of Victoria  VSC 509 at ).
The performance of pro bono work was regarded as a relevant factor in “sentencing”.
Though there was no evidence that the barrister had not done the work he received the money for, the Full Tribunal considered any mishandling of trust money to be very serious, and set great emphasis on general deterrence.
Appropriately, the Bar sought only counsel’s fees, in contradistinction to the Law Institute, which habitually seeks costs by reference to the work of its salaried employees who charge it no costs. The Bar was awarded its costs on the basis that, as a matter of traidition, costs more or less follow the event under the Legal Practice Act, 1996.
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