Validity of a Bureau de Spanque notice requiring information in relation to a complaint

By far the commonest disciplinary prosecution of lawyers in Victoria is for breach of s. 149 of the Legal Practice Act, 1996 or s. 4.4.11 of the Legal Profession Act, 2004.  The Victorian thing to do is to say:

‘Yep, sorry, I didn’t respond.  I was, like, really stressed at the time and had quite a lot of work on.  It’s not professional misconduct, it’s only unsatisfactory professional conduct. I’ll pay the $1,000 fine. Can we agree on a reasonable sum for costs?’

It is a sensisble strategy if it’s true, and a doubtful strategy if it’s bollocks.  But then if it’s bollocks, it’s hard to know what is a sensible strategy.  Up in New South Wales, though, they attack the validity of the notice, contending that there can be no punishment for failing to comply with a notice which is invalid.  The barrister did not get very far in NSW Bar Association v Howen [2003] NSWADT 117 (indeed it is likely he travelled backwards), but I kind of dig his misguided chutzpah.  That was an attack on a notice under s. 152 of the Legal Profession Act, 1987 (NSW).  It was a bit different from the old Victorian s. 149.  (In NSW, see now s. 660 of the Legal Profession Act, 2004 (NSW).) The Tribunal did say at [11] that:

‘a notice calling upon a person to respond, in circumstances where a failure to respond may have adverse legal consequences to the person, must be expressed with sufficient clarity to enable the recipient to comprehend what is required of him.’

Actually, it’s coming back to me: a spunky barrister just starting out in her career took on the might of the State in a recent Victorian disciplinary prosecution, and contested the validity of the s. 4.4.11 notice.  Her argument was that the Bureau de Spanque did not have jurisdiction to investigate the solicitor’s conduct because the complaint was about what he did qua migration agent, the sole Bureau responsible for whom was the Bureau MARAis.  It was a nicely put together argument, but ultimately it failed  on the construction of the interrelationship of the Migration Act, 1958 and the Legal Profession Act, 2004 adopted by Deputy President Ross. Legal Services Commissioner v Jonathan W [2009] VCAT 318 is an interesting and important decision for other reasons.  I keep meaning to finish my post about it.  Remind me.

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