VCAT suggests natural justice requires Bureau to wait indefinitely for practitioner’s response

In Legal Services Commissioner v SAC [2008] VCAT 576, a solicitor ignored the Bureau for over 6 months before the Bureau moved to prosecute him for non-compliance with the Commissioner’s demands.  After the charge was laid but before it was heard, the solicitor provided an adequate response and apologised. Didn’t do him any good though: he still copped a finding of misconduct, and has to pay $2,400 in fines and costs.  Member Butcher made this comment:

‘The submission made on behalf of the Legal Services Commissioner that the professional responsibility lies with members of the profession to comply with the regulatory regime for the reasons that the failure to respond hinders the investigation of complaints is a valid one and also the submission that the Commissioner may not adequately deal with a complaint until a response is received simply because to do so denies procedural fairness to the legal practitioner.’

Perhaps someone better schooled in administrative law than I am can explain to me why a decision maker needs to wait indefinitely for one of her subjects to get around to exercising his right to a hearing.  I thought the obligation on decision makers was to give an opportunity to be heard. It is not clear to me from the Act, or my recollection of Administrative Law at university that anything other than an opportunity to be heard is required.  If the Bureau publicised the fact that it would make decisions if practitioners did not make a suitable effort to provide a substantive response within the 14 day period in which responses are required by the Act, people might get off their butts and actually respond, and complainants might get a bit of closure quicker.

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