In my last post, I briefly surveyed VCAT’s approach to the Barbaro principle in disciplinary proceedings against solicitors. I just came across a presentation given by the Supreme Court’s Justice Garde, VCAT’s President which touches on this issue. The presentation is titled ‘Alternative Dispute Resolution – Can it work for Administrative Law?’. It was given on 26 February 2014, and is linked to here. The relevant part is:
‘ADR has typically been more successful in disciplinary proceedings at VCAT than in the [Planning and Environment List]. However, the process of ADR in such proceedings is likely to be affected by the recent High Court decision in Barbaro v The Queen; Zirilli v The Queen  HCA 2 (‘Barbaro and Zirilli’). In this case, it was held that the established practice in criminal proceedings in Victoria, whereby the prosecution makes a submission as to the range of sentences that would be appropriate in the circumstances, is inappropriate and should cease immediately.
Although made in the context of criminal proceedings, this judgment is likely to impact on VCAT’s disciplinary proceedings due to the analogy drawn between disciplinary proceedings and criminal proceedings by the Court of Appeal in Towie v Medical Practitioners Board of Victoria  VSCA 157. In that case, the Court of Appeal found that a respondent to disciplinary proceedings has the same right as a criminal defendant to stand mute until the completion of the case being made against him or her.
In Stirling v Legal Services Commissioner  VSCA 374, the Court noted that the analogy between criminal and disciplinary proceedings was imperfect, but nevertheless went on to apply principles relating to criminal sentencing to the imposition of a penalty in the disciplinary proceedings under consideration. Ultimately, the Court found it appropriate to expand principles applicable to global and suspended sentences into the context of disciplinary proceedings.
As a result, the High Court decision in Barbaro and Zirilli is likely to require that VCAT no longer accept submissions in relation to appropriate penalties. This will impact upon the parties’ ability to participate in ADR in such proceedings, as negotiations in these cases typically centre around the submissions that will be made as to the appropriate penalty in the event that particular admissions are made.’
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