Re-raising complaints-(not)

In Cahill v Victorian Legal Services Commissioner [2017] VSC 177 (Keogh J); [2017] VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the proceedings ended in what he regarded as inconclusive circumstances.  He prosecuted the practitioner, who successfully sought judicial review on the basis that the Commissioner was not entitled to have a second go at the investigation.  The Commissioner appealed unsuccessfully to the Court of Appeal.  Apparently, that was the end of it.

This case reaffirms the principle that statutory authorities cannot revisit their final decisions because they change their mind or come to appreciate that they are wrong: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 603; Semunigus v Minister for Immigration [2000] FCA 240; (2000) 96 FCR 533, 540 [55]; Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 (20 December 2016) [48] (Nettle JA).

The practitioner acted for the complainant in 2010 and 2011.   The complainant said she entrusted the practitioner with $300,000 to invest in March 2011, failed to tell her where her money was once it was invested, and only gave her $200,000 back, the practitioner having allegedly impermissibly withdrawn $100,000 in satisfaction of legal fees.  It may be appreciated that the complaint was one of the utmost seriousness.

The complaint was received by the Commissioner in October 2012 and promptly published to the practitioner.  Investigation ensued.  In December 2012, the complainant sued the practitioner for breach of trust and in February 2013 the Commissioner, through a delegate, dismissed the complaint on the basis that it was before the courts.  This was done, it later emerged, expressly by reference to s. 4.2.10(1)(f) of the Legal Profession Act 2004 which entitled the Commissioner to dismiss complaints which the Commissioner considered required no further investigation.

The twist in the case is that the Commissioner said to the complainant ‘You may however wish to re-raise the complaint once court proceedings have been finalised and you may wish to raise any adverse comments or findings by the court in any new complaint.’

Why it took the Commissioner one and a half months from when the proceedings were commenced to do so is unexplained and uncommented on, and why, just because similar civil questions were being determined in a court, the disciplinary questions required no further investigation is equally unexplained.  But in my experience, the Commissioner generally will not go anywhere near complaints whose subject matter overlaps with extant litigation even where there is no identity of parties between the complaint and the litigation.  And it is apparent from something one of the Commissioner’s people said later that the Commissioner considered that there was a ‘legal impediment’ to continuing the investigation once similar issues were before a court (see [42] at first instance).  The Court of Appeal did not comment on whether it would ever be appropriate to stop investigating because of pending court proceedings, because it was common ground between the parties that that would sometimes be appropriate (as it presumably would be, for example, if the practitioner was the subject of a related criminal prosecution): see [26].

Assuming there was some merit in the ‘we can’t investigate something that’s before the court’ thing, one suspects that the Commissioner’s delegate assumed that the only course available was one specifically provided for by the statute rather than the recognition of a common law norm along the lines that the executive shouldn’t stick their noses into matters before the courts, and plumped for sub-s. (1)(f) as the least inapposite specifically provided for course in the Legal Profession Act 2004.

But in August 2013, the suit for breach of trust in the courts was dismissed by consent with no order as to costs.  One might think that the question the subject of the complaint was then res judicata, and the whole question determined by the court, but for some reason the Commissioner treated the outcome as being the equivalent of a discontinuance of the kind which does not give rise to a litigation estoppel.  And, next day, in response to a request to do so by the complainant, one of his people opened a new file and purported to continue to investigate the complaint he had dismissed more than six months earlier, which was said, rather wonderfully to my mind, to have been ‘re-raised’.

The investigation ground on at the glacial pace typical of the Commissioner’s and Legal Services Board’s offices at the time (consider Justice Betty King’s comments about the Legal Services Board in R v Munt [2015] VSC 132) for nearly two more years, until it resulted in a VCAT Application by way of a disciplinary prosecution.

The practitioner sought judicial review at common law, through the procedure set out in Order 56 of the Supreme Court Rules, arguing essentially that once the Commissioner had dismissed the complaint, he was functus officio and fell into jurisdictional error  in investigating something he no longer had any power at all to poke his nose into.

The practitioner needed an extension of time, which was granted on the basis that if it wasn’t, the practitioner would just run the same judicial review of the decision at the end of the VCAT prosecution on the basis that VCAT had fallen into jurisdictional error by hearing a case it had no jurisdiction to hear by virtue of the fact that it had been brought by a person who had no power to bring it because it was the result of an investigation by a Commissioner who was functus.  (The Commissioner in opposing the extension characterised the practitioner’s case, which Justices Keough, Tate, Kyrou and Hansen would all come to find compelling, as ‘weak’, and said the protection of the public meant that all this administrative law pallaver should be subordinated to getting on with the prosecution so the public could be protected.)

The Commissioner made some weird arguments at first instance, each of which was given short shrift (see [34]):

  • First, he said however much it might have looked like he did so through his delegate by saying so in writing, he could not actually have dismissed the investigation because he did not have power to dismiss it.
  • Secondly, he said there was no evidence that he formed the view that it was unnecessary to continue the investigation, despite the fact that he had delegated the power to another decision maker and that delegate had expressly exercised in writing the power which could only be exercised if the delegate had come to that view (see [36]).  He contended that neither he nor any delegate had validly exercised the s. 4.2.10(1)(f) power, but (fatally) put on no evidence as to what his delegate actually was thinking.
  • Thirdly, and quite astonishingly to my mind, the Commissioner argued that he could keep investigating the complaint after he had dismissed it because he had only dismissed the complaint, not the investigation.
  • Fourthly, he made a whacky argument by reference to s. 41A of the Interpretation of Legislation Act 1984, which gives to people empowered by statutes to make instruments an implied power to revoke them. Problem was, of course, his decision to close the complaint was not an instrument.
  • And fifthly, he pointed out, apparently without expressly asserting that he had done so, that he was empowered to commence an investigation of his own motion, apparently even after he had investigated and dismissed a complaint in respect of the same subject matter.

The most interesting point made by the Commissioner was that one of the other grounds on which he was permitted summarily to dismiss a complaint, s. 4.2.10(1)(c), was that the conduct complained about had already been the subject of a previous complaint that had been dismissed.  Implicitly, therefore, the Commissioner argued, he must have been permitted not to dismiss summarily such a complaint.  Though the Court did not say so, I suspect what the draftsman had in mind was a situation where person A complained about a practitioner’s conduct which had also affected person B and which had already been investigated (e.g. a misleading statement in a costs agreement routinely used by the practitioner) or where person A complained about a practitioner’s conduct towards person B where person B had already complained about that.  Sub-s. (1)(c) needs to be read with an understanding that anyone can complain about a lawyer’s misconduct (not just the client, or the victim, or an affected person, but the King of Siam).  This is picked up glancingly at [103] in the appellate decision.

Kyrou JA said at [115]:

‘Section 4.2.10(1)(c) empowers the Commissioner to investigate a new complaint which relates to the same conduct as was the subject of a complaint that has been summarily dismissed but does not empower him to investigate the dismissed complaint. In these circumstances, it would be highly contrived and contrary to principle to treat the dismissed complaint as a new complaint for the purpose of augmenting the Commissioner’s powers under s 4.2.10(1)(c) beyond those conferred by that provision.’

Section 4.4.7(2) required the Commissioner to investigate every disciplinary complaint except in certain circumstances, including (c) complaints dismissed under part 4.2 (in which s. 4.2.10 was found).  That raised the question — If the Commissioner was functus officio once he dismissed a complaint under part 4.2, what was the point of s. 4.4.7(2)(c)?  Kyrou JA said the question did not really arise on the arguments presented by the parties, and did not determine the question.  One answer is that the draftsman was just stating in statutory terms a conclusion which followed at law but might not necessarily be immediately apparent to junior decision makers.

Kyrou JA found at [93] that it was more likely that the Commissioner’s delegate did decide to dismiss the complaint because it did not require further investigation, presumably because the Court would do the investigation instead, and mis-understood the significance of such a decision (believing that he could continue the investigation if appropriate following the Court’s decision), than that the Commissioner’s delegate fully understood the legal consequences of his decision and so may be understood not in fact to have intended to exercise s. 4.2.10(1)(f)’s power.

On appeal, the Commissioner argued, alternatively to other arguments, that even if the original complaint had been finally dismissed, the complainant’s post-proceedings email seeking a continuation of the investigation was a new complaint, which the Commissioner was entitled to investigate, and should have investigated in light of the comments made about coming back when he dismissed the first complaint.  The first problem, Kyrou JA said, was the email said:

‘I hope that you could proceed with the investigation of my claim against [the respondent] now,’

and that just wasn’t a new complaint.

Secondly, this argument had an air of afterthought, completely inconsistent with the Commissioner’s previous behaviour and arguments.  Perhaps most significantly, the Commissioner told the practitioner in Round 2 that he intended to investigate not only matters which were the subject of the original complaint but also matters which were had only arisen during the course of Round 1 and about which the complainant said nothing in her email asking the Commissioner to go back to the investigation of the original complaint.  So Round 2 must have been a continuation of Round 1.  See [112].

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