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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:

‘9. … First, the jurisdiction of the Tribunal under s 4.4.15 of the Act is a protective jurisdiction. A disbarring order or suspension is not punitive in character. In Legal Services Commissioner v Brereton6 the Court of Appeal noted that legislation such as the Act creates ‘civil norms governing the conduct of legal practitioners, the aim of which is the protection of the public and not the denunciation of the practitioner’.7 In Law Society (SA) v Murphy8 Doyle CJ described the purpose of the jurisdiction:

The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner […] a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust.

10. Clyne v Bar Association (NSW) also highlights the dual nature of these orders that both protect the public from disadvantage and exploitation, and the profession from the loss of status and privilege that might follow should such abuses go without remedy.9 Numerous subsequent cases have adopted these objectives.10 The Tribunal would not be properly discharging its protective duties to the public, the legal profession and the administration of justice generally if it were simply to conclude, in the circumstances of this matter, that the respondent was guilty of professional misconduct as charged without hearing or receiving any evidence.

11  Secondly, a number of the charges are dependent on what was said in conversations, or on behaviour alleged of the respondent which is said to amount to professional misconduct. In order to assess the significance and seriousness of the allegations made against the respondent, it is necessary for the Commissioner to provide the Tribunal with evidence and material as to what is said to have taken place.

12  Thirdly, the findings and reasons of the Tribunal as they relate to the alleged professional misconduct of the respondent, and the gravity of that misconduct if proven, are of fundamental importance to the making of final orders which may significantly affect the respondent and his ability to practice.11

13  In making final orders affecting the respondent’s ability to practice, the Tribunal is required to take into account any evidence going as to rehabilitation, remorse, participation in the conduct of the investigation and hearing, delay, the respondent’s financial and family situation, the respondent’s behaviour and candour, any explanation for the respondent’s behaviour, the benefits of any further training, and any conditions that should be imposed.12 The Tribunal cannot properly discharge these responsibilities if an order is summarily made under s 78, with the result that evidence and information that may be in the possession of the Commissioner is not provided to the Tribunal.

14  Fourthly, the orders that are sought from the Tribunal are discretionary in character. In order to properly exercise its discretionary powers, the Tribunal requires evidence from the Commissioner that will assist the Tribunal in forming a view as to the orders that ought to be made, and why they should be made.

15  In the circumstances of this case, it is appropriate that the proceeding progress to final hearing rather than being dealt with under s 78(2) of the VCAT Act. Given the continuing absence of the respondent, it appears likely that the final hearing will be conducted on an unopposed basis.13′ (footnotes omitted)

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Tags: Discipline · Evidence · Legal Services Commissioner · procedure · VCAT Act