A man retained a solicitor to act in the purchase of property.  He signed the contract of sale in the solicitor’s presence, and then took it away to ‘think about it’.  The solicitor exchanged the contract with the vendor’s camp on its return, having learnt from the client that the client’s wife had signed it as co-purchaser.  The solicitor’s signature as witness remained on the document. Combined with other documents the solicitor exchanged, the impression was given to the vendor that he acted for both and had explained to each of them the contract and a waiver of entitlement to the cooling off period.  In fact he had not done so, and the wife later said her signature had been forged. According to Justice of Appeal Handley, with whom the other judges agreed, though the solicitor’s conduct was ‘incredibly sloppy’, it did not rise to the relevant part of the definition of ‘professional misconduct’, being:

‘unsatisfactory professional conduct “where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”.’

‘Unsatisfactory professional conduct’ was defined to mean conduct:

“that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”

It did not rise to ‘professional misconduct’ because, being ‘momentary and isolated lapses’, they were neither ‘substantial’ nor ‘consistent’.  Nevertheless, Justice of Appeal Handley said:

‘Although, by themselves, they were not acts of professional misconduct, repeated acts of this character would properly be characterised in that way.  Although the acts were isolated and there is no evidence that they had been repeated in other transactions the solicitor should nevertheless be publicly reprimanded for them as acts of unsatisfactory professional conduct.’

The Court of Appeal accordingly unanimously substituted for the finding of professional misconduct a finding of unsatisfactory professional conduct, a course which had been available to the Tribunal under the NSW equivalent of the Legal Profession Act, 2004 (Vic)’s s. 4.4.20.

‘[159] The Law Society submitted that if this Court was of the view that the Tribunal lacked jurisdiction, as the evidence and the matter of the practitioner’s conduct is now before the Court, it should exercise its inherent jurisdiction over the profession by dealing with the practitioner in respect of her conduct. This approach would require this Court to rely on evidence placed before the Tribunal in the course of invalid proceedings. Counsel for the practitioner submitted that as the Law Society chose the Tribunal route, it would be inappropriate for this Court to exercise other than the appellate jurisdiction. As counsel put it it is “counter-intuitive” to make use of material put before the Tribunal and, if the Tribunal lacked jurisdiction, justice demands a fresh proceeding. To exercise the inherent jurisdiction de novo would involve formulating a charge and carrying the baggage of the old proceedings. Overall, suggested counsel, exercising the inherent jurisdiction would carry with it a flavour of the “wild west”.

[160] In my view, there is considerable force in the submissions of counsel for the practitioner. If I am wrong in my view that the Tribunal possessed jurisdiction, in my opinion this Court should not endeavour to exercise its inherent jurisdiction.’

The duty which was breached was formulated at [141] as follows:

‘the obligation carried by a legal practitioner is to take care when making serious allegations of impropriety against another on behalf of a client. The obligation arises not only when making allegations or preparing pleadings in a court proceeding but in other situations where the practitioner is protected by privilege and, indeed, in all circumstances, to maintain standards of decency and fairness. The appropriate standard of care is exercised by ensuring that there is evidence upon which allegations might be made and in the light of that evidence by seeking specific instructions in relation to the allegations.’

The complaint purported to be on behalf of the Uniting Church.  Whether the lawyer had the Church’s authority to make the complaint, and its instructions to make certain serious allegations which were included in the complaint was controversial, but in the end, the Supreme Court held that the presumption of regularity which attached to the Church’s seal on the complaint had not been displaced by evidence led by the Disciplinary Authority.  The Disciplinary Tribunal had clearly erred in coming to the opposite conclusion, reversing the onus of proof inadvertently.  But that error did not mean the decision was wrong, and, as noted above, the findings of professional misconduct were confirmed.

The most controversial bits of the solicitor’s complaints, which was, in tone, a sober document, were as follows:

‘Cridlands used confidential and commercially sensitive knowledge and information gained as legal representatives of the Church to draft a ‘Development Deed’ for and on behalf of [another client of the firm] that was prejudicial to the interests of the Church with respect to [a Mitchell St property].’

and

‘Cridlands used and passed on commercially sensitive information relating to bids from prospective anchor tenants received in confidence on behalf of the Church for the CBD Plaza to [the other client] for its development.’

and

‘(a) Cridlands were privy to all lease and allied negotiations between the Church and Woolworths and their competitor Coles in relation to becoming anchor tenants at the CBD Plaza which took place prior to the Development of [Mitchell St].

(b) Cridlands were also aware of all negotiations over the rental rates, periods of discount, fit out arrangements with Specialty Shop Tenants at the CBD Plaza.

(c) Cridlands used the above information to R Is’ advantage by securing Coles as the anchor tenant in the Mitchell Street Development Centre …. This information was commercially sensitive information that allowed R I to negotiate with Coles and obtain a financial advantage. It also allowed R I to maximize the rental it obtained from Coles.

(d) By bringing Coles into the Darwin CBD it created competition between the two supermarkets that resulted in the loss of revenue to the Church which has a rent based also on the Turnover of Woolworths.

(e) Cridlands also used the information to obtain a personal advantage for themselves to negotiate and obtain a commercial lease of office floor space within Mitchell Street Development Centre …

Alternatively

(f) By providing this commercially sensitive information to R I Cridlands were able to obtain a personal advantage for themselves by negotiating and obtaining a commercial lease of office floor space within Mitchell Street Development Centre’.

The Chief Justice made findings of dishonesty in the absence of any allegation of dishonesty in the charge.  One might say, in fact, that he went out of his way to do so.  First he sought comment in relation to whether on the agreed facts, the Tribunal was free to draw inferences that dishonesty actuated the solicitor’s conduct, and invited the Commissioner to amend the charge so as to allow exploration of that issue.  His Honour adjourned the hearing to give the Commissioner time to think about that. On the return of the hearing, the Commissioner declined the invitation to amend.  So the Tribunal put out a document specifying, as a matter of procedural fairness, the inferences it was considering drawing, and invited argument.  The solicitor swore an affidavit responding to the Tribunal’s document.  The Commissioner’s counsel cross-examined the solicitor, but did not put it to him that he had acted dishonestly. The Tribunal then concluded that the solicitor had acted dishonestly, and decided to strike him off rather than go with the fine and reprimand recommended by the Commissioner.  Ooffa!

‘Wrong way. Go back!’ said the Court of Appeal.  It started with a general proposition:

’54 It is … a well recognised rule of practice in civil proceedings that, although the word “dishonesty” is not necessarily required, any charge of dishonesty must be made in clear terms.  In a well known passage in Belmont Finance Corporation Ltd v Williams Furniture Ltd & Ors [1979] Ch 250 at 268  Buckley LJ said:

“An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognised rule of practice. This does not import that the word “fraud” or the word “dishonesty” must necessarily be used:  see Davy v Garrett, 7 Ch. D. 473, 489, per Thesiger L.J. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.”

Many similar statements concerning allegations involving dishonesty may be found in the authorities and in many different contexts: See, eg, Krakowski & Anor v Eurolynx Properties Ltd & Anor (1995) 183 CLR 563 at 573; [1995] HCA 68; Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 295; [1990] HCA 11.’

But what does all this actually mean? Helpfully, the case provides its own illustration.  Charge 4 alleged:

’4. On or about 14 January 2004, the respondent charged the client legal fees which he knew, or ought to have known, were not properly chargeable.

Particulars

4.1 The applicant repeats and relies upon the particulars in charges 1 to 3 above.

4.2 On or about 14 January 2004, the respondent rendered an invoice in the amount of $23,107.20 for his professional fees to his client, which invoice included charges for legal services performed by the respondent relating to the first and second applications.

4.3 The respondent’s account was rendered to the client in circumstances where:

(a) the respondent did not first obtain instructions from his client to provide legal services relating to the first and second applications;

(b) the respondent knew, or ought to have known, he was not entitled to receive payment for those
services from his client;

(c) the respondent did not obtain his client’s authority to deduct his fees for those services from the settlement sum.

4.4 On 14 May 2004, the respondent transferred the sum of $23,107.20 from his trust account to his general account in payment of the invoice dated 14 January 2004.’

The Court said:

‘The Commissioner does not now contend that the discipline application charged dishonesty, except possibly in relation to charge four.

[53] Charge four did not in terms allege dishonest conduct, but such a characterisation is arguably available in the allegation that the respondent charged legal fees which he “knew, or ought to have known were not properly chargeable” and in the particular of that allegation that the appellant “knew, or ought to have known” that he was not entitled to receive payment for the particular services.’

But it found at [56] that this was not a sufficiently clear allegation of dishonesty as to be a safe basis for a finding of dishonesty, affirming Walter v Council of Queensland Law Society Incorporated (1988) 77 ALR 228 at 234; [1988] HCA 8, the subject of my earlier post.

At [74], after going through the statutory scheme (relevantly similar to Victoria’s), the Court observed that:

‘The scheme of the 2007 Act is that the Commissioner investigates possible misconduct, decides whether to bring a charge, and decides what to charge.  The Tribunal’s role is adjudicative.  Section 455 is consistent with that scheme, in that any amendment of the discipline application may be made only upon the Commissioner’s application; the Tribunal then exercises a judicial discretion in deciding whether the amendment sought by the Commissioner is to be allowed.’

The Chief Justice had thought that he had a power to consider what his Honour wanted to consider by virtue of s. 602 which said that ‘The tribunal may do all things necessary or convenient to be done for exercising its jurisdiction.’  In the context of a statutory provision which allowed for amendments on the application of the Commissioner, and after extensive reliance on Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 at [59]ff, the Court held that it should not

‘be implied that the Tribunal possesses any unconditional power to vary discipline applications.  The disciplinary processes are not criminal in nature: see McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42 at 58 and the cases cited therein.  But the 2007 Act does adopt the familiar adversarial procedure under which it is no part of the judicial function to determine what charges are to be brought or pursued: under this Act the decision to institute proceedings is the province of the executive and decisions directed to ensuring a fair trial and prevention of abuse of the Tribunal’s processes are the province of the Tribunal: cf Ayles v The Queen (2008) 232 CLR 410; [2008] HCA 6 per Kiefel J, Gleeson CJ and Hayden J agreeing, at [70]-[72].’

The Court then held that though the Chief Justice was a Supreme Court judge, and though the Supreme Court has an inherent jurisdiction to discipline practitioners, he did not hear the case in his capacity as a Supreme Court judge, but in his capacity as Chairman of the Legal Practice Tribunal, so that his decision could not be justified by reference to the inherent jurisdiction.

The Court rejected the Commissioner’s argument that it had done all that was necessary: alleged facts the admissions in respect of which everyone agreed made out professional misconduct.  Evidence of dishonesty, and inferences naturally available from the agreed facts as to dishonesty were relevant not to the charge, but to the penalty.  The Court said the legislation does:

‘not envisage the two step process contemplated by the argument.  It contemplates a hearing followed by both the findings of any proved misconduct and the imposition of the appropriate penalty for that misconduct.  Further, as was pointed out in the joint judgment in Walsh …, the statutory requirements of particularity in legislation of this character, and the safeguards introduced by those requirements for the practitioner concerned, should not be construed narrowly.  That statutory objective of ensuring fairness by the means provided in the Act is as relevant to the penalty as it is to the findings of fact.’

So, the Court concluded, the Tribunal acted without jurisdiction in enquiring into the solicitor’s possible dishonesty.  The solicitor had had the good sense to go off and do some higher education in relation to professional standards, and had passed a one-day exam at the end of it. The Court substituted for the Tribunal’s orders a $10,000 fine and 12 months’ supervised practice.  It ordered that the Commissioner pay the solicitor’s costs of the appeal.

The main reason her Honour so held was that the Act specifically empowered the Board at the end of an inquiry to make a finding that the builder had failed to comply with the Act: s. 179(1)(b). If it did so, it could reprimand the builder, order costs against him, fine him, require him to promise not to do things, and suspend or cancel his registration: s. 179(2).

Her Honour observed:

’29 If the builder’s argument (that the Inquiry is a proceeding for an offence) is accepted, then the Board is not even authorised to conduct a disciplinary inquiry into whether he has failed to comply with s 16(1). But, s 179(1)(b) specifically empowers the Board to make a finding that a builder has failed to comply with the Act. There would be little, if any, work for s 179(1)(b) to perform, were the builder’s argument correct. The court should, if possible, construe s 179(1)(b) so as to give it some meaning consistent with the purpose and objects of the Act.’

That conclusion would obviously be stronger if breach of every, or even most of the obligations on builders under the Act amounted to offences than if there are many obligations placed by the Act on builders breach of only some of which is a crime.  In the latter scenario, the work of sub-section (1)(b) if parliament were presumed not to have intended bureaucrats to run cases for declarations of the commission of crimes in tribunals ignorant of the criminal law where the laws of evidence do not apply would be to allow determinations to be made of breach of those obligations under the Act which do not sound in criminal liability.  I am not sure what the situation in that regard is under the Building Act, 1993.

Her Honour said:

’37 It is trite to observe that the same events may have a variety of legal consequences. For example, an act or omission may constitute a criminal offence and also give rise to civil proceedings, such as an action in damages. The same events may also have disciplinary consequences.

38 The standard of proof will vary, depending on the type of proceeding. Disciplinary inquiries into professional misconduct are not criminal proceedings, and the standard of proof is not proof beyond reasonable doubt. Nevertheless, given the nature of such proceedings and the serious consequences which they may have, the Briginshaw test applies.

39 The structure of the Act is that any failure by a builder to comply with a provision such as s 16(1) may have criminal consequences (through prosecution for an offence, brought in court by a prescribed person other than the Board) and/or disciplinary consequences (through the holding of an inquiry by the Board). A different standard of proof would apply, depending on the nature of the proceeding. Furthermore, a proceeding for an offence would be subject to the limitation period in s 241(7), a disciplinary inquiry under s 178 would be subject to no such time limit.

40 Different persons make the decision whether or not to bring the different types of proceeding. Whether one or both proceedings would be commenced would no doubt depend on the circumstances of each case.’

As Her Honour pointed out, recourse to the outcomes of other cases was of limited assistance. The question for determination was really one of statutory construction, and, as usual, the best way of construing a statute was a careful study of its stated purposes, and of the interrelationship of its provisions.  For that reason, I hesitate in making this last comment, because I have not been disciplined enough to compare the statutory regime at issue in Legal Practitioners Conduct Board v Ardalich [2005] SASC 278, which I noted here with the one under consideration by Justice Hollingworth.  But the tenor of this passage, which does not appear to have been cited to her Honour (perhaps because it was not relevant, of course) does strike up a diferent tone from that in this more recent decision:

’37. In my view, it was not appropriate for the Tribunal to embark upon some sort of quasi criminal trial, but adopting a lower standard of proof, ….

38 If the Board charges the practitioner with unprofessional conduct constituted by the commission of a criminal offence, short of an admission by the practitioner, it is incumbent upon the Board to produce evidence of the conviction of the practitioner of the offence recorded in a court exercising criminal jurisdiction.’

If I were making the law, this is how I would set it up:

• where conduct, established on the civil burden of proof, would meet some test for conduct warranting discipline independently of the fact that, the same conduct accompanied by a sane and guilty mind, then that conduct ought to be able to be relied on as conduct warranting professional discipline, but the allegation should be the engaging in of the conduct without alleging that the conduct amounted to the commission of an offence, or breached a provision the sole purpose of which was to create an offence;
• but where the only reason the professional’s peers would regard the conduct as wrongful is by virtue of the fact that its deliberate engaging in amounted to an offence (and the conduct did not also fall within some definition of conduct warranting discipline independently of the fact that it amounted to an offence, so that it would be alleged without reference to the offence) then a disciplinary body should not be empowered effectively to run a criminal prosecution on the civil standard;
• no one but a criminal court should be taken to have been invested by parliament with the authority to make a finding in a case which has punitive consequences such as fines or cancellation of a professional registration (regardless of whether or not imprisonment is an option) that a professional has committed a crime (or, which is the same thing, breached a provision of an Act which creates an offence) unless parliament has shown, by clear words, that it intended such a consequence.

That is especially so where those who are subject to investigations of allegations of conduct warranting discipline often have their privilege against self-incrimination revoked, the hearings occur in tribunals which are not bound by the law of evidence, and the outcomes of the hearings — heavy fines, loss of the right to practise a profession, and (unlike defendants in criminal prosecutions) an obligation to pay the ‘prosecutor’s’ costs — may be far more serious in many ways than the typical outcome of successful prosecutions of even serious crimes (a suspended sentence of imprisonment).

ASIC summonsed three people to be examined by inspectors. They all proposed to be represented at the examination by one lawyer. A direction was made by letter, the effect of which prohibited them from being commonly represented. The examinees sought judicial review under the ADJR Act of the decision expressed in the letter. Earlier, ASIC had commenced Supreme Court proceedings and had obtained asset preservation orders and orders requiring the surrender of the three examinees’ passports. The lawyer’s firm had been retained at the outset of those proceedings, and he was involved in them as well as in the examination. Those orders were to expire, and ASIC summonsed the examinees for examination a few days before that expiry, under s. 19 of the ASIC Act, 2001. ASIC’s inspectors expressed the view that

‘it will not be possible for [the three examinees] to have the same legal representatives, or different representatives each from [the firm], at their examination’

by a letter a week before the examination. The inspectors pushed back two of the three examinees’ examinations for just a few days, presumably to allow new representation to be scrambled together. The solicitors sought reasons under the ADJR Act. ASIC refused. The examinees brought the ADJR Act application. 5 days later, ASIC provided reasons. For reasons which I do not discuss in this post, the reasons were found by his Honour not to be the real reasons of the inspectors at the time when they made their direction, and were disregarded.

The power to exclude people from examinations was found in s. 22(1) of the ASIC Act, 2001. The provision says:

‘The examination must take place in private and the inspector may give directions about who may be present during it, or during part of it.’

The following propositions come from the judgment:

1. The power is vested in the inspectors, not in ASIC: [34] – [35].

2. Notwithstanding s. 23 (‘Examinee’s lawyer may attend’), s. 22 permits an inspector to exclude an examinee’s lawyer: Australian Securities Commission v Bell (1991) 32 FCR 517 at 521, 528-529 and 532-533.

3. The exclusion may be announced before the hearing, and may be in respect of the whole of the hearing: [40].

4. The owner of the relevant right is the lawyer, not the client, though it may be that the right is to be exercised by the lawyer for the benefit of the client and in accordance with lawful instructions: [47]. Nevertheless, because the lawyer owes fiduciary obligations to the client, ‘the duties thereby erected generate in the client a sufficient interest also to attract an obligation of procedural fairness.’ Accordingly, ‘the giving of a direction excluding a lawyer from an examination will require the affording of procedural fairness both to the lawyer and his or her client,’ (though satisfaction of the fairness obligation will often be met by giving the lawyer a chance to make submissions, on his or her own behalf and on behalf of the client). His Honour drew support in relation to the procedural fairness conclusion from Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. That was another case about procedural fairness in relation to a decision about a right to be heard, in that case at a coronial inquest.

5. The power to direct exclusion of a lawyer is only enlivened where the inspector believes that exclusion is necessary for the purposes of the examination (as opposed to the investigation of which the examination is a part, if there is any distinction in a particular case: [56]) and that belief is held on reasonable grounds and in good faith: [48]ff. There is no explicit reasonableness requirement in s. 22 of the ASIC Act, 2001. Rather, there is an implied obligation of reasonableness. The warrant for the implication lies in ‘the need ‘to prevent the power to exclude in s 22(1) from devouring the whole of the operation of s 23(1), which entitled the lawyer to be present’: [51].

6. In a review of an exclusion direction, the burden of proving the conditions for an exclusion direction falls on the inspector who made the direction: [53]. To state the obvious, that is so, even though the inspector would be the respondent at the suit of an applicant affected by his or her decision, and even though applicants and plaintiffs generally bear the burden of proof in civil litigation. The decision maker bears the same burden in the case of similar directions in relation to a National Crime Authority examination: [48]. In that case, it is because the power to exclude is found in s. 19 of the National Crime Authority Act, 1984 which empowers the NCA to do all things necessary to be done for or in connection with the preformance of its functions. Justice Perram said:

‘The fact that the power actually used depended upon the existence of a relevant necessity meant that an absence of such a necessity entailed ultra vires action. In that sense, it was for the Authority to show that its action was within power and to do that it needed to show the necessity which activated the power in s. 19.’

In this particular case, the inspectors’ concern seemed to be that the three different examinees were known to have different accounts of relevant events, and the inspectors wanted to hear the examinees’ unvarnished stories without the possibility of their lawyers steering their accounts towards divergence. Justice Perram said not every case of divergent testimony would justify what amounted to a separate representation order; it is a question of degree. In this case, there was simply inadequate inadmissible evidence to establish that there was a reasonable need from the point of view of the integrity of the examination to require separate representation. The burden of proof falling on ASIC’s inspectors, they lost, and their decision was set aside.

Each of those three acts earnt him a suspension of registration for 1 month at the hands of Judge Ross on review, effectively affirming the Board’s decision and rejecting the Board’s solicitor advocate’s submission that a suspension of 2-3 months was justified by each of the three matters.  Judge Ross found that each matter amounted to ‘misconduct of a serious nature’ rather than ‘misconduct not of a serious nature’.  But Judge Ross added a reprimand and a fine of $2,500 for practising without insurance (‘the most serious of the matters’) and a fine of $1,500 for his failure to respond to the Board. It is interesting that the period of unqualified practice  was regarded as less serious than the failure to cooperate.  All that was in the context of the 74 year old dentist having an otherwise unblemished record, intending to work only until the end of next year, and having cooperated fully once he was actually prosecuted, admitting all of the conduct against him, and consenting to a statement of agreed facts.

Judge Ross specifically found that specific deterrence was an irrelevant consideration, and the disposition was justifed exclusively by reference to general deterrence.

Update, 15 July 2008: Apparently the Law Institute’s trust account inspector Ron Hall thumped the table while under cross-examination by the lawyer’s counsel. What drama! The Age‘s report is here. Mr Hall’s evidence provides a fascinating insight into the way trust account inspectors employed by the Law Institute think. Mr Hall said at one stage, he thought ‘right, I have enough here to put a practitioner up for alleged misconduct or unsatisfactory conduct’. Inspectors hold statutory office as individuals, and their job is to investigate compliance with the trust account regime, and to report their results to the Legal Services Board. The Legal Services Commissioner is charged with bringing prosecutions for misconduct or unsatisfactory conduct. Many trust account inspectors are employees of the Law Institute, and the Board delegates its functions in relation to trust accounts to the Institute. The Commissioner outsources the investigation of allegations of unsatisfactory conduct and misconduct to the Institute too. This is under the new simpler, more transparent, new and improved no-self-regulation-here! regime set up at such expense of paper and ink by the Legal Profession Act, 2004. According to The Age:

‘Mr Hall was asked if, during his investigation, he acted “at the express behest of the Australian Crime Commission”. He first said “yes”, adding he had been subpoenaed by the ACC. Asked again by VCAT deputy president Mark Dwyer, Mr Hall said the LIV investigation was his own work. But then he revealed that ACC officers gave him one of their documents.’

Update, 12 July 2008: The lawyer failed in his bid to have the Supreme Court prevent the Legal Profession Tribunal continuing to hear the disciplinary charges against him. And The Age reports on one of the transactions under scrutiny, a loan by Michael Gudinski to his then lawyer, of $20,000, said by the Legal Services Commissioner to be inadequately documented, and a breach of professional standards.Original post: The lawyer towards the centre of the regulators’ tax probe Project Wickenby, once Kylie Minogue’s and other celebrities’ lawyer, is again in the news as his VCAT Legal Practice List prosecution continues in his absence overseas. He has appealed Deputy President Dwyer’s refusal to adjourn the disciplinary hearing on the basis it would prejudice the hearing of what the solicitor claims are imminent criminal charges and the appeal will be heard in the Supreme Court on Friday morning. His barrister says he has no instructions in relation to the disciplinary matters. The Commissioner alleges the solicitor provided no cooperation with the investigation. I am not aware of Deputy President Dwyer sitting in the Legal Practice List before. He was the head of Freehills’s Environment and Planning Group and was appointed DP on 1 April 2007.

As far as I can see from Austlii, all of his decisions written reasons for which have been published on Austlii have involved local councils and I infer that they have all been planning matters. There is one exception: a real property list matter. A web profile of Mr Dwyer before his appointment says:

‘Mark was admitted to Practice in Victoria in 1982, and later in NSW (1996) and WA (2000). He has been accredited as a Specialist in Environment and Planning Law since commencement of the Specialisation Scheme in 1990 and was a member of the Specialisation Advisory Committee for Environment and Planning Law from 1996 to 2006.

Mark joined Freehills as a partner in 1995, and has headed the firm’s national Environment & Planning Law Group from 1998-2006.

Mark advises on the legal and regulatory framework relating to the development and use of land. This includes planning, environmental, land acquisition and valuation, heritage and native title issues.

Mark primarily assists clients with the planning approval process and environmental impact assessment associated with large-scale property and infrastructure developments and corporate transactions.

Mark has advised the Department of Sustainability and Environment (and its predecessors) on planning systems reform since 1987, including implementation of the Planning and Environment Act 1987, ‘new format’ planning schemes and ‘plain English’ definitions, subdivision and heritage legislation, and the Victoria Planning Provisions.

Mark’s other professional roles have included:

• Chairman, Law Council of Australia’s national planning and environmental law committee (1999-2003) – this included presentation of the LCA submission on the Environment Protection and Biodiversity Conservation Act to a Senate Inquiry;
• Lecturer in Water, Environment, and Local Government Law within environmental engineering courses at Deakin University and Victoria University of Technology (1992-94);
• Board member, Environment Defenders Office (1991-93);
• Trustee – Kerrup-Jmara Aboriginal Elders Trust (1989-92);
• Deputy Chair and Executive Member of LIV Environmental Law Section, and various ad hoc LIV committees (1994-2000);
• Executive Member of VPELA, and various ad hoc VPELA committees.’

Update, 17 June 2008: The Age has caught up with this story. It’s a funny old article. Weirdest is this comment ‘A prominent senior counsel said the system was unfair, and any complaint should be forwarded immediately to the subject of the complaint.’ In my experience, the Commissioner does almost invariably send the complaint immediately to the solicitor, and that’s not what the case was about anyway.

Original post: In Byrne v Marles [2008] VSCA 78, the Court of Appeal has thrown a very lean cat amongst some very fat pigeons in a decision which may invalidate all current investigations of the Legal Services Commissioner unless it is overturned on appeal or remedial legislation is passed with retrospective effect (which was the response after the great delegation debacle). The Court found that the Commissioner’s referral to the Law Institute for investigation of what she characterised as a disciplinary complaint was ‘invalid’. In following her absolutely standard practice, the Court said the Commissioner had failed to give natural justice to the solicitor by deciding to characterise the complaint as a disciplinary rather than civil complaint and by deciding not to dismiss it summarily without investigation, without allowing the solicitor to be heard in relation to those preliminary decisions. Anyone — complainant or lawyer — who has a current complaint which is not heading in the desired direction should seek advice from a lawyer with expertise in relation to the professional discipline of lawyers. It is conceivable that the decision may provide options for those against whom professional discipline prosecutions have succeeded under the Legal Profession Act, 2004. Given that the Commissioner never, in my experience, invites discussion about the preliminary questions of whether to dismiss the complaint before commencing an investigation, or on the proper characterisation of the complaint, it seems likely that most of the Commissioner’s decisions to investigate complaints will be ‘invalid’.

As I have sometimes said, Justice Gillard was one of my favourite judges, and Byrne v Law Institute of Victoria is one of my favourite bits of his Honour’s legal writing: see ‘Justice Gillard gives the Law Institute a Bloody Belting‘. Mr Byrne has been slaying regulators again, this time prevailing over the Bureau de Spank in the Court of Appeal in Byrne v Marles [2008] VSCA 78 after failing at first instance before Justice Kaye (see Byrne v Marles [2007] VSC 63). In the case Justice Gillard heard, Mr Byrne sought judicial review of the Law Institute’s finding that a complaint against him had been made out (even though the Institute decided to take no further action). He succeeded, Justice Gillard holding that the Law Institute’s decision was so unreasonable that no decision maker could reasonably have arrived at it.

The facts were that a man briefly retained Mr Byrne, whom I will refer to as ‘the solicitor’. Then he terminated the retainer in favour of another firm. The new firm asked for the solicitor’s file. He declined, saying that he was drawing a bill of costs and maintained a lien over the file in respect of the as yet unbilled fees. No one suggested there was anything wrong with the assertion of the lien. The new firm asked for a copy of the costs agreement. When the solicitor did not produce it, the new firm threatened to complain to the Law Institute (a misconceived threat, since the Law Institute no longer has any role in receiving complaints against lawyers). That got the solicitor’s goat. He obviously considered the threat to be an improper bullying tactic, and demanded to know what exactly he would be doing wrong by not acceding to a request by a client for a copy of the solicitor’s part of the contract between them in circumstances where the client seemed to have lost his part. The solicitor’s correspondence was relatively temperate, but one of his missives said

‘Please don’t misunderstand us, there is nothing wrong with your threat, it is just your inability to follow up which bother us [sic], because hollow threats come at a price. We neglected other work we had to reply to you in the apparently idle time-frame you set, but it appears we’ve only given in to a bully; you had no complaint to make and the deadline you set amounted to nothing.’

The decision does not suggest that the solicitor was under any duty to provide a copy of the costs agreement on demand, but Nettle J said at [61] that

‘the [solicitor's] alleged conduct in repeatedly ignoring [the new firm’s] apparently reasonable requests for a copy of the fee agreement, coupled with the [solicitor's] references to idle threats and bullying, were rude and in context sufficiently discourteous, offensive and provocative as to be capable of contravening Rule 21′

in the sense that the Commissioner’s characterisation of the allegations as amounting to a breach of that rule could not be said to be so unreasonable that no reasonable decision maker could have arrived at that characterisation. So, his Honour said, it could not be said that the characterisation of the complaint as a disciplinary complaint was completly and utterly obviously wrong, since breach of a conduct rule is capable of amounting to professional misconduct or unsatisfactory professional conduct. Rule 21 said at the relevant time:

‘A practitioner, in all of the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.’

The new firm’s complaint had said the solicitor’s conduct ‘has been unprofessional and obstructive, especially considering his knowledge of the client’s poor grasp of English. There has been one verbal request and four written requests for the fee agreement, all of which have failed to produce the document, or a reasonable response’.

The Commissioner simply provided to the solicitor a copy of the complaint, advised that she had characterised it as a disciplinary complaint (as opposed to a civil complaint), and that she was referring it to the Law Institute for investigation. The Institute was then to report back to her to enable her to make a decision. The characterisation of the complaint as a disciplinary complaint meant that the Commissioner could exercise the extraordinary powers of compulsion at her disposal in disciplinary complaint investigations (but which are not available in settlement attempts of civil disputes). It meant that the end result might be a disciplinary prosecution by her rather than a civil action by the client. It meant that if the complaint were made out, the options for the disposition of any further disciplinary complaint made within the next 5 years would be less beneficial for the solicitor. Nettle JA said at [71]:

‘No doubt a decision by the Commissioner to treat a complaint as a disciplinary complaint and to investigate it as such or to refer it for investigation by the Institute enlivens the investigative powers of the Commissioner and the Institute, including powers to compel the production of documents and explanations. In that limited sense it may be said that such a decision is one which satisfies a condition precedent to the exercise of power which may in turn affect rights or otherwise give rise to legal consequences. But that is not sufficient to attract certiorari. It does not necessarily follow from the Commissioner’s decision to investigate or refer that compulsive powers will be invoked. It is conceivable that an examination [sic.] could be carried out without any reference to the subject of the complaint or alternatively by means of interview without any compulsion.’

But that did not leave the solicitor without a remedy. The solicitor had a right to be heard on the characterisation of the complaint, and as to whether the Commissioner should summarily dismiss the purported complaint before investigating it. Nettle JA said:

‘[85] … because the Commissioner is compelled by s 4.2.8 of the [Legal Profession Act, 2004] to give notice of the complaint to the solicitor as soon as practicable after receipt, and to make a preliminary decision whether to dismiss the complaint summarily before going further with the investigation, it appears to me that the statute evinces an intention that the Commissioner should give notice of a complaint to the solicitor more or less immediately after receipt, and then take into account anything about the complaint which the solicitor may wish to submit, before determining whether to dismiss the complaint summarily or to go on to investigate it further or to refer it to the Institute for investigation. Otherwise, why provide, as s 4.2.8 so clearly does provide, that the Commissioner must notify the solicitor of the complaint as soon as practicable after receipt?’

[86] … the Commissioner has an independent obligation under s 4.2.10 to determine whether a complaint is to be dismissed summarily or not proceeded with further. If so, there is practical merit in providing the solicitor with an opportunity to make a submission or adduce facts to the Commissioner before the Commissioner determines that the complaint is a disciplinary complaint which needs be investigated. The right to be heard at that stage affords the solicitor an opportunity to head off the complaint in limine, by persuading the Commissioner not to treat it as a disciplinary complaint or to dismiss it or not proceed with it under s 4.2.10. And such a right to be heard is essentially different to any which the solicitor may later be accorded by the Institute or the Board.

[87] In the result, it appears to me as a matter of statutory construction that the structure and operation Part 4.2 imply an expectation that the Commissioner will give the solicitor a right to be heard at the outset before making the preliminary decision for which s 4.2.10 provides.

…

[89] … The content of natural justice is variable according to the circumstances of the case and, in the ordinary case, it should not require much more than the Commissioner inviting the solicitor to respond to the complaint and specifying a relatively short period of time (perhaps no more than a week after giving notice) in which any such response should be provided. In other kinds of cases, for example in cases of real urgency, or where the giving of notice would likely lead to the destruction of evidence or something of that nature, the content of natural justice might be reduced; in some cases perhaps even to the point of effectively abrogating it altogether. All in all, there should be few cases in which there is much of a problem.’