The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT.  Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.

The Medical Practitioners Board had cancelled the doctor’s registration following his conviction for sex offences involving patients.  Years later, he had applied for re-registration, and was knocked back.  He applied to VCAT for review.  It granted the review, deciding that the correct and preferable decision for the Board to have made was to allow him back into practice subject to strict conditions, such as that he not treat women.  The Board appealed that decision to the Court of Appeal, and applied for a stay of VCAT’s order pending determination of the appeal.  More usually, of course, the professional applies for a stay of a decision disentitling him or her to practise pending appeal.  The Board succeeded in its stay application: Medical Practitioners Board of Victoria v SL [2008] VSCA 264.  Their Honours summarised the VCAT decision of Judge Ross’s tribunal, and then said this in granting the stay:

’14 The question that remains to be determined is whether, pending hearing and determination of the appeal, the respondent should be permitted to practise in accordance with the Tribunal’s finding. We were informed from the Bar table by counsel who appeared for the respondent that he has not engaged in any medical work since 2003, but that he now wishes to return to the practice of medicine. It appears that he is presently seeking a position with a group practice and that an interview has been arranged.

15 It goes without saying that an appeal does not of itself operate as a stay. Moreover, the jurisdiction to grant a stay pending an application for leave to appeal will only be exercised in exceptional circumstances. This Court, having already granted leave to appeal, may not be so constrained.

16 But, in any event, the factors that are relevant include the prospects that the appeal will be successful, the balance of convenience, and any prejudice that will flow to either party from granting or refusing the stay. As a general proposition, the respondent should not lightly be denied the ‘fruits’ of his success before the Tribunal. It is clear that the onus rests upon the party seeking the stay.

17 Despite the careful findings of the Tribunal, we have concluded that the Board has discharged that onus. We are influenced to some degree in arriving at that conclusion by the fact that this appeal can be expedited and heard relatively soon. Enquiries with the Registry indicate that the appeal can be listed for hearing very early on in term two next year. We propose to direct that that course be followed.

18 There is nothing to indicate that the respondent is presently suffering undue hardship by being unable to practise medicine. He is currently employed in a book-keeping capacity and appears to be able to make a living. At worst, he will face a stay of some few months, which will delay his return to practise for a relatively short time. Given that he has not been practising for some six years, a delay of a few months longer does not strike us as gravely prejudicial.

19 In addition, it should be borne in mind that this is not a commercial dispute between two private litigants. The paramount consideration must be the protection of the public. To refuse the stay would require a conclusion on our part, albeit a provisional one, that the public welfare will be adequately protected, that being the primary question which must be resolved on the appeal. The public interest will be best served, we have concluded, if the respondent does not return to his practice as a doctor, even under close supervision, until this Court has determined whether he should be permitted to do so. It would serve no one’s interest if the respondent were to treat patients for several months and then find his registration once again cancelled.’

• applicants for admission have the burden of establishing that they are fit and proper persons to be admitted to practice and enrolled by signing the roll of practitioners: Re B [1981] 2 NSWLR 372 at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported) at 5;
• legal regulators who apply for an order cancelling a practitioner’s practising certificate have a civil onus of proving on the Briginshaw standard that the practitioner is not, at the time of the hearing, a fit and proper person to practise;
• legal regulators who apply for an order striking off a practitioner, that is, for an order that their name be struck off the roll of practitioners, have a civil onus of proving on the Briginshaw standard that the lawyer is not a fit and proper person to practise, and that the likelihood is that they will continue not to be for the indefinite future;
• lawyers who have either been struck off, or who have been found guilty of misconduct but rely on remediation during the time between the misconduct and the hearing so as to argue that they are now fit to engage in practice bear the burden of proving that the new leaf they have turned over is as green and shiny as they claim.

The ultimate issue in a case about being on the roll or having a practising certificate is whether the lawyer is at the time of the hearing a fit and proper person to engage in practice: Cambell JA at [56], referring to A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [15], Ex parte Brounsall (1778) 2 Cowp 829 at 830, 98 ER 1385 at 1385 per Lord Mansfield LCJ; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441-442.

The difference between whether a person is a fit and proper person to hold a practising certificate and whether they are fit and proper to stay on the roll is a question only of degree. In New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23, Spigelman CJ said at [21] that the difference ‘may not be great in many cases’, but should not be overlooked. The difference is that an order to strike the lawyer off the roll should be made only where, at the time when the decision is made, the decision maker is satisfied of the likelihood that the lawyer will be unfit to practise for the indefinite future. (That is what cases like these ones mean: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236; New South Wales Bar Association v Maddocks (Court of Appeal, 23 August 1988, unreported) per Kirby P at 1 and 38, per McHugh J at penultimate para; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17]; Ex parte Lenehan (1948) 77 CLR 403 at 422; Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported) at 4 per Kirby P, 38 per McHugh JA; and NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [25]-[28] per Spigelman CJ (with whom Mason P and Handley JA agreed).)

Campbell JA said at [54]:

‘If the [decision maker] is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under [the relevant statute]. Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate.’

Later, Campbell JA explained the law behind giving to the legal regulator the burden of proof in establishing the facts from which inferences in support of the ultimate issue may be drawn, but giving to the lawyer the burden of establishing that things are different now from how they were when the conduct in question occurred. He did so by reference to the presumption of continuity (or ‘continuance’, as he put it). Once it has been established that there has been wrongdoing by a lawyer, the presumption of continuity kicks in. The law says experience teaches us that, in some situations, the existence of a state of affairs is prospectant circumstantial evidence of the same state of affairs existing at a later date. So, a person’s theological beliefs are assumed in the absence of contrary evidence to be the same 4 years later, and a person’s state of mind is presumed to be constant in the absence of contrary evidence: see Cross of Evidence (Lexis Nexis, looseleaf) at [1125] and [7255]. So too, Campbell JA tells us in this case, is a person’s unfitness for practice presumed to continue in the absence of contrary evidence:

‘the subject matter to which the presumption of continuity is applied in the present case is the character of a person. It is not at all uncommon for aspects of the character of a person to persist over decades, frequently for someone’s entire life. In my view, a tribunal of fact would be justified in using the extremely serious acts of professional misconduct in which the Appellant engaged in the period 1991 to 1993 as a basis for inferring that she was then unfit to practise, and that it was likely, notwithstanding that 15 years had passed, that she was still unfit to practise, unless the Appellant could produce evidence that gave reason for believing the situation had changed.’

But the presumption is not a legal presumption, but rather a shorthand for a synthesis of experience of considering what inferences may be drawn from particular types of circumstantial evidence, and his Honour indicated at [65] that a time will come when past wrongdoing which rendered, or demonstrated, a person to be unfit to practise at the time of the wrongdoing is no longer circumstantial evidence of present unfitness:

‘[65] There may be some subject matters concerning which the strength of an inference arising from a presumption of continuity attenuated with time until it totally disappeared.’

Another way of discussing the fourth bullet point above, consistently with the reasoning in Stanoevski’s Case is that the legal regulator is entitled to rely on the presumption of continuance to discharge the burden of proof which remains on it, and the lawyer is required to adduce evidence if he or she needs to rebut the presumption. And this is the better way of looking at it, because whether or not the presumption kicks in depends not on any universal law of evidence, but on the usual rules which govern whether one thing is circumstantial evidence of another, a question analysed in Associate Professor Palmer’s iconoclastic text Proof. It all depends on what the legal regulator has put into evidence. Scandalous wrongdoing established by judgment and proved by the legal regulator may be combined with a formal admission by it as to the truth of the contents of a medical report indicating that psychiatric factors which have since abated explained the earlier aberrant conduct. In such a case, there would be no room for the operation of the presumption of continuance, and the onus would never shift to the lawyer. That is what this passage from Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (a case which had nothing to do with lawyers, but adopted by Campbell JA), says:

‘Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if the evidence that the plaintiff adduced was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. In that situation, one says that an onus of adducing evidence shifts to the defendant because the defendant is then in a situation in which, if the defendant does not adduce evidence concerning that proposition, the plaintiff might succeed in establishing that proposition. Counsel for a defendant has to decide whether to adduce evidence on a topic at a time in the course of the trial when counsel necessarily cannot be absolutely sure of two matters that are of critical importance to whether the onus of adducing evidence has actually shifted – will the judge accept the plaintiff’s evidence on the topic, and if so will the judge regard that evidence, if no other evidence is adduced, as enough to make it more likely that the plaintiff’s contention concerning that topic is correct. The type of “onus” that the defendant is then under is one of practical necessity – either adduce evidence, or risk losing on that issue. But before a defendant is in that situation, the evidence that the plaintiff has put forward on the topic must be such that, if accepted and the only evidence on the topic, it would justify the court in deciding it is more likely than not that the proposition for which the plaintiff bears the onus of proof is true. If the evidence that a plaintiff adduces is equally consistent with that proposition being true, or that proposition not being true, so that the plaintiff would fail to discharge its onus of proof if that were the only evidence on the topic, the defendant does not come under the sort of practical compulsion that I have been describing.’

Stanoevski was a case where, in the hearing which was the subject of the appeal, there was no question that a substantial period beforehand, the lawyer had engaged in misconduct which demonstrated her unfitness to practise at that earlier time. The decision appealed from was itself a remission after a successful appeal of the discrete question of the appropriate penalty. In other words, the hearing of whether the misconduct was engaged in was not the same hearing as the one in which the order appropriate for the protection of the public was engaged in. The case where the question of whether the lawyer was unfit to practise some time ago falls for determination after the same hearing as the question of whether he or she is presently so unfit is more difficult. Whether or not it would be open to the lawyer, before going into evidence, to seek a ruling as to whether the legal regulator had made out a sufficient case to shift the burden of proof is an interesting question. Applications to strike off lawyers are proceedings for a penalty after all: Rich v ASIC (2004) 209 ALR 271; [2004] HCA 42, which means that respondents to such proceedings are entitled to put the legal regulator to their proof. Of course the question will not arise where, as often happens, the tribunal reserves on the question of whether the lawyer engaged in the alleged wrongdoing, and then invites argument on the disposition of the matter after handing down reasons for its initial finding.

I wonder whether anything would stop the Board from calling the solicitor as its own witness and just asking her whether she lied on oath, or, if she were to give evidence, cross-examining her about this. If she did, she would presumably be obliged to say so honestly, though her answers could not be used to prosecute her again, only to inform VCAT in its decision about whether she is a fit and proper person to hold a practising certifiate. In ascertaining whether a person is of good fame and character, or otherwise a fit and proper person to hold a practising certificate, the stipes are entitled to take into account not only criminal convictions but criminal charges, even where the charge resulted in an acquittal: Frugtniet v Board of Examiners [2002] VSC 140, a decision of Justice Pagone. At least that is so at the moment of application for admission which I suspect poses a greater hurdle for applicants than is faced by applicants for the renewal of a practising certificate. Not surprisingly, however, any inferences to be drawn from facts of an alleged crime where the charge did not result in a conviction are required to be drawn only after a full and proper investigation: Frugtniet v Board of Examiners [2005] VSC 332 at [20] to [22], a decision of Justice Gillard. His Honour said:

’20 The question does arise, what effect should be given to the fact that an applicant for admission has been charged with criminal offences and acquitted. The appellant’s counsel submitted that full effect must be given to the acquittal and no adverse inference should be drawn against the appellant by reason of the fact that he has been charged with criminal offences concerning dishonesty. Counsel for the Board referred to the text The Victorian Solicitor by Heymanson at page 235, where the author discussed the question in the context of striking a practitioner off the roll. It was submitted that the same principles apply to an application for admission. The learned author notes that it is the offence with which the Court is concerned and not whether the practitioner has been convicted or acquitted. In the case of Re Crick [(1907) 7 SR (NSW) 576], a practitioner who was the Minister of the Crown was found by a Royal Commission to have accepted bribes. He was twice brought to trial for the criminal offence but on each occasion the jury disagreed and the Crown ultimately entered a nolle prosequi. He was struck off the roll for misconduct. In an earlier case of Re Salwey [(1894) 15 LR (NSW) 147], a solicitor was found to have committed fraud in a civil proceeding but was acquitted in a criminal court but nevertheless was struck off the roll for misconduct. A close reading of these cases reveals that the alleged misconduct of the practitioner was investigated and a decision was made by a responsible authority that the practitioner in question was guilty of misconduct. Hence, the mere fact of acquittal was not to the point. In those cases there was ample evidence before the Court justifying the removal from the roll.

21 Mr Brett QC also referred to the Full Court decision of the Supreme Court of the ACT in Re Del Castillo (1998) 136 ACTR 1. The applicant had stood trial for murder and was acquitted. He revealed that fact to an admission board. The Full Court said:

“It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of that person’s character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused. Particularly, but not only, in cases where serious harm has been wholly or in part caused by an accused person, the court has evidently accepted that there was a reasonable chance that the circumstances were exculpatory (as in the present case) it is likely that, logically or not, some people will consider the fame and/or character of the accused to be defective.”

22 In my opinion the cases establish that an acquittal of a person applying for admission to practise of itself must be given full effect to. However, that would not preclude the Admission Board from fully investigating and considering all the circumstances which may lead to a decision that the applicant is not a fit and proper person. Absent a full and proper investigation in my opinion it is not open to an admission Board to draw any adverse inference against an applicant because he or she has been charged with a criminal offence and is subsequently acquitted. Of course, each case must be considered in relation to its particular circumstances.’

Now, those sections from the VCAT Act, 1998:

Section 80(3):

‘The Tribunal [i.e. VCAT] may give directions… requiring a party to produce a document or provide information… despite any rule of law relating to privilege or the public interest in relation to the production of documents.’

Section 105:

‘(1) A person is not excused from answering a question or producing a document in a proceeding on the ground that the answer or document might tend to incriminate the person.

(2) If the person claims, before answering a question or producing a document, that the answer or document might tend to incriminate them, the answer or document is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.’

‘For brevity we shall refer collectively to the succession of statutes governing legal practice in Victoria from the time of the Royal Assent to the Legal Profession Practice Act 1958 until the present day as the legal practice acts. Until 1989 the legal practice acts did not require a legal practitioner to have a practising certificate if he or she was engaged in practice exclusively as a barrister. In 1989 the legal practice acts were amended, and what might be called the certificate-free area was restricted to those legal practitioners whose names were on the Bar Roll kept by the Victorian Bar Council. Finally the Legal Practice Act of 1996 provided and still provides that so far as Victorian practitioners are concerned no person whatever shall engage in legal practice unless the person holds a practising certificate. See section 314. The contents of sub-sections (5) and (6), and the penalty of two years imprisonment for engaging in practice without a certificate, demonstrate the importance of these fundamental provisions in the eye of the legislature.

Clause 10 sub-clause 3 of Schedule 2 of the Act of 1996 provided that those practitioners who were on the bar roll need not have a practising certificate until April 1997.’

The Legal Services Board, through its delegate, opposed the solicitor’s proposal:

’16… the Law Institute strongly opposed the application for review, and was not prepared to accept the proposal.

17 Mr. Barravecchio said that [the solicitor] is charged with criminal offences that are so serious as to render [the solicitor] not a fit and proper person to hold a practising certificate. Because [the solicitor] is not a fit and proper person, contended Mr. Barravecchio, it is in the public interest that his practising certificate be suspended immediately.

18 Mr. Barravecchio further contended that, if the Law Institute had not suspended [the solicitor]‘s practising certificate, it would have been seen to be condoning [the solicitor]‘s conduct. Furthermore, it would have been seen to be holding out to the profession and to the public that [the solicitor] remained a fit and proper person to hold a practising certificate. In the circumstances of this case, said Mr. Barravecchio, that would be “incongruous”.’

There is a natural tendency to conceive of practising certificate cases as being dichotomous: as if — to have or not to have a practising certificate, that is the question. As this illustration shows, there is a broad spectrum of possibilities between being allowed to practise as principal of a law practice with a trust account and not being allowed to practice at all.

See also this post about another lawyer accused of having child pornography on his computer.

’6. The [offences] are at the lowest end of the scale of offences of this nature. The total involved was just over $9,000 and it was not money that at any stage was ever to be for your own spending. The money was directed into meeting the targets set by your firm for your department. All firms have become hard-headed businesses, with targets and budgets and six minute units which, I add, is, in my view, driving young lawyers out of the profession at a very rapid rate. You, unfortunately, had commenced practice when it was a profession and unlike its current incarnation. It would, of course, have been preferable to have approached your other partners and indicated that it was not possible to meet the budget that had been set for you and suffered the consequences of not meeting that budget. Instead, you chose this course of conduct, the one of stealing money from those accounts. That has resulted in far worse consequences for you, your wife, your children and the community that you had previously served so well.

…

11 I accept what was put on your behalf as to what occurred, the type of firm that BDW became compared to the firm with which you were a partner at the time of the merger or takeover, whichever you wish to describe it as. You went from being a practitioner in the conveyancing/probate area with a number of solicitors working on an annual budget of about, according to the notes provided to me, $400,000 a year in 1988 to a budget of $1.5 million by the year 2000 with no solicitors left to assist you, but six to eight clerks helping you. So what you had was a huge volume of turnover, possibly very little in the way of legal work, but you had a budget you had to meet. Those budgets, I think, cause many people problems. As I said, there was a much easier solution that was available to you and one that, to a large degree, when I look at your background, surprises me you did not take.’

BDW initiated an internal audit. When the results were apparent, the firm referred the matter not to the police but to the Law Institute. A month after the period of offending came to an end, presumably as a result of the audit, he went to another firm as a salary partner for less than a year before surrending his practising certificate in the expectation he would be dealt with by the Law Institute (an excellent strategy). One and a half years later or so, he was charged with 87 counts of misconduct. Only at that time were the police involved. The solicitor gave a no comment record of interview. In the misconduct charges, he admitted at some stage the facts alleged against him, and conceded that they amounted to misconduct. No express finding of dishonesty seems to have been made. Four years ago, the Tribunal gave the solicitor a well-earned break for three and a half years, prohibited him from applying for anything other than an employee practising certificate until 2040 (i.e. a month shy of his 90th birthday), and whacked him with a $66,000 costs order, a sum which raises the possibility that the ‘guilty plea’ was not made at the outset.

The three and a half years went by, and the solicitor applied again for a practising certificate. Because he had surrendered his practising certificate early, he had been out of practice by the time of the application for five years. On the plus side, he had a man whose occupation was described as ‘former President of the Melbourne Cricket Club’ to vouch for him. On the negative side, 3 days before the three and a half years ran out, he pleaded guilty in the Supreme Court to 6 crimes arising out of the same general conduct as gave rise to the misconduct propositions — false accounting and having a trust account deficiency — and received a two year good behaviour bond by way of sentence, which he is still serving. See [2007] VSC 384. A former Supreme Court judge and fellow MCC Committee member gave character evidence for him at the criminal trial. Justice Betty King was good enough during her sentencing remarks, to say ‘I accept that you are absolutely unlikely to ever commit an offence of this nature again.’ In classic Justice King style, she also quipped:

‘Equally, I do not believe that there is any need to impose any monetary fine, as I have no doubt that has been imposed over the years by those whom you instruct, as well as this tribunal. No disrespect to those appearing for you.’

The Law Institute, the Board’s delegate, refused his application for a practising certificate. After a review hearing, the newish Vice President, Judge Ross, rolled the Institute, and gave the solicitor an employee practising certificate — just no licence to operate a trust account.

Judge Ross said:

• [23] In the review of the Board’s decision, VCAT must conduct the review without any presumption as to the correctness of the decision subject to review: McDonald v Guardianship Board [1993] 1 VR 521 at 528; Davidson v Victoria Institute of Teaching [2006] VSCA 193 (6 September 2006);
• [24] The Applicant carries the burden of showing that he is a fit and proper person: Re S (a solicitor) [1986] VR 743; Frugtniet v Board of Examiners [2005] VSC 332;
• [34] The Applicant’s argument that he had already been sufficiently punished for his wrongdoing missed the point, because the jurisdiction is protective of the public, and has nothing to do with punishment (he said ‘The issue in each case ultimately, is whether VCAT can conclude, on the basis of all the evidence, that the applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities that are involved in the work of the legal profession.’);
• [35] The evidence of a very senior practitioner who had known the applicant professionally for 30 years that in his opinion the applicant ‘set a very good standard so far as the legal profession is concerned’ was considered significant, as was his generosity in helping young people improve their cricketing skills, and the fact that he had been employed for two years at a mortgage broker and financial planning service with a legal arm at which he would be employed under the supervision of an experienced practitioner if he got his ticket back;
• [41] It was relevant that the Institute had never applied to have the applicant’s name struck off the roll of solicitors;
• [42] The Law Institute’s argument that the applicant did not show the requisite degree of candour in the Legal Profession Tribunal prosecution in not admitting a dishonest intention (but subsequently pleading guilty to crimes which required dishonesty to be made out) was misconceived because in the Tribunal, no allegations of dishonesty were made against him, except in one category of offences whose circumstances did not overlap with the dishonesty offences he later pleaded guilty to;
• [44] That the applicant was still serving his sentence was relevant but not determinative;
• [45] There should be no criticism of the applicant not giving evidence (‘Two previous proceedings have detailed the Applicant’s remorse and the shame that his misconduct has visited upon him and his family. In addition [one of the character witnesses'] evidence before me makes it clear that the Applicant recognises what he has done and is very remorseful.’)

Update, 21 December 2007: Another two advocates’ immunity cases:

1. Symonds v Vass [2007] NSWSC 1274, 36,000 words, after nearly 3 weeks of trial. See Ysaiah Ross’s case note in his article in The Australian on 30 November 2007 titled ‘Let’s Dump Advocates’ Immunity’.

2. Mallik v McGeown [2007] NSWSC 1414.

Update, 19 December 2007: Fellow Melbourne law blogger Legal Eagle has done an excellent case note on the first case referred to below, saving me the trouble.

Original post: The Supreme Court and Court of Appeal is dropping cases on this blog like no tomorrow. I can’t keep up, so I will just bring them to your attention for the time being:

1. Re Legal Practice Act 2004; re OG, a lawyer [2007] VSC 520, in which the Court of Appeal today struck off the roll a barrister whose disclosure to the Board of Examiners about an allegation at university that he cheated on an assignment was found to be a lie. Legal Eagle provided a long note of the case here. In other news, a famous American judge, Richard Posner, wrote a book on plagiarism. He blogs too. Update: 29 January 2008: And compare this American case (In the Matter of Willie Jay White, Supreme Court of Georgia) about an applicant for admission to practice which was denied because his explanation for curious similarities between his work and another’s at law school was not believed.

2. Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) [2007] VSCA 280, a case about whether estoppel by convention could operate against the prima facie disentitlement in a solicitor to recover fees under a void costs agreement, and about where exactly the dividing line is between a void and a good costs agreement. It is the latest in a long saga.

3. Coadys (a firm) v Getzler [2007] VSCA 281, a case covering much the same territory as the Equuscorp Case. This case and the previous one will be very important for the interpretation of the Legal Profession Act, 2004‘s costs provisions.

4. Francis v Bunnett [2007] VSC 527, in which Justice Lasry dismissed an application for summary judgment by reference to advocates’ immunity in a classic regretted settlement case. That is, his Honour was not persuaded of the hopelessness of the client’s argument that where there has been no adjudication after a trial, there is no finality of the kind protected by the immunity which is worthy of protection. It is notable that a number of cases which have gone the other way are not mentioned in the judgment.

5. MM&R Pty Ltd v Grills [2007] VSC 528, a decision of Justice Cavenough yesterday about the availability of advocates’ immunity as a defence to a suit alleging simple delay, and where there has been no adjudicated decision of a court worthy of protection. His Honour recognised that the immunity applied in such circumstances.

It will be interesting to read the two advocates’ immunity decisions more carefully, and tease out to what extent they are consistent with one another.