Judicial review of decisions to dismiss disciplinary complaints

A man was acquitted of criminal charges.  The prosecution’s appeal failed.  He complained about the police’s lawyers’ conduct to South Australia’s Bureau de Spank, the Legal Practitioner Conduct Commissioner.  The Commissioner dismissed the complaint.  There was a statutory right of appeal in respect of some but not all categories of decisions at the conclusion of a disciplinary investigation.  Dismissals of complaints were not decisions which attracted a right of appeal.  Furthermore, the Commissioner argued, the man had a right  essentially to prosecute the lawyers privately for misconduct as an ‘aggrieved person’ under s. 82(2)(d), Legal Practitioners Act 1981 (SA).

The Commissioner applied unsuccessfully for the summary dismissal of the judicial review application.  The Court found that even though in any ordinary prosecution which would have followed a disciplinary complaint, the parties would be the Commissioner rather than the complainant on the one hand and the lawyer on the other, the complainant’s connection as the object of the alleged misconduct to the subject matter of the complaint was sufficient to give him standing (or, more precisely, to avoid summary termination of his proceedings on the basis of lack of standing).  And that was so notwithstanding the statutory scheme for appeals which conspicuously excluded him from its tenderness and notwithstanding any right he may have privately to prosecute the lawyers.  The decision is reported as McLeod v Legal Profession Conduct Commissioner [2016] SASC 151.

The situation in Victoria is impacted, in respect of complaints to the Victorian Legal Services Commissioner to which the Legal Profession Uniform Law apply  by part 5.6 of chapter 5 (ss. 312 – 314).  Decisions of the Victorian Legal Services Commissioner under chapter 5 are ‘final, except as provided by this Part’.  The Commissioner is empowered to review his own decision but only at his absolute discretion.  And lawyers have a right to appeal to a person who is presumably intended to be VCAT from a disciplinary sanction imposed administratively by the Commissioner or a compensation order imposed by him for $10,000 or more.

As to the law in relation to the same question in Queensland, see Murphy v Legal Services Commission [2016] QSC 174.

Criminal prosecutions (-not) by disciplinary authorities

Updates, 13 June and 24 October 2012: See now Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79 from [23] and Legal Profession Complaints Committee v Masten [2010] WASAT 47.

Original post: The Building Practitioners Board is the Bureau de Spank for builders. It initiated an inquiry into whether a builder had breached a provision of the Building Act, 1993 (Vic.).  The provision prohibited builders from building without a permit.  Breach is a crime, but the Board is not entitled to prosecute offences under the Act, for which there is a limitation period of 3 years from the end of the building.  The Builder applied for judicial review of the decision to hold the inquiry, and the outcome is reported as Rodwell v Building Practitioners Board [2009] VCS 146.  He said that a disciplinary hearing into whether he had committed a crime was ‘a proceeding for an offence’.  If he was right, then the limitation period, which was attached to that concept, had already run, and the Board did not have the power to hold the inquiry.  Justice Hollingworth held against the builder. Continue reading “Criminal prosecutions (-not) by disciplinary authorities”

Kylie’s one-time lawyer before VCAT’s Legal Practice List

Update, 18 July 2008: Make that a $200,000, not $20,000, loan from rock impressario Michael Gudinski. I like the way he gave evidence to VCAT’s Legal Practice List by mobile phone from a US Billy Joel concert. Leonie Wood’s report for The Age is here.

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: Continue reading “Kylie’s one-time lawyer before VCAT’s Legal Practice List”

Court of Appeal wreaks havoc with most current Legal Services Commissioner investigations

Update, 2 September 2010: Just noticed this and thought to store it away here as potentially interesting: http://jade.barnet.com.au/Jade.html#article=229752.

Update, 7 August 2010: The saga continues.  See this post.

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’. Continue reading “Court of Appeal wreaks havoc with most current Legal Services Commissioner investigations”

Misconduct charge no. 21 against Victorian silk stayed as abuse of process

The latest and possibly last chapter in the tribulations of Victoria’s most senior female silk is to be found in M v VCAT [2007] VSC 89, a decision of Justice Mandie. The barrister was charged on 4 July 2005 with 24 charges of misconduct, and ended up after a hearing of the first half of the charges with a finding of only 4 counts of unsatisfactory conduct. All but one of the second half were abandoned, but the Bar, as prosecutor, sought to amend the last remaining charge so as to substitute an allegation of unsatisfactory conduct for the original charge of misconduct. VCAT found it had no power to grant leave to amend a charge, and the barrister convinced the Supreme Court to stay the hearing of the last charge as an abuse of process, VCAT having refused to do so. It was an abuse because the Bar wished to proceed with the misconduct charge not so as to make out an allegation of misconduct, but so as to provide a vehicle for a finding of unsatisfactory conduct under a statutory power which empowered VCAT to make a finding of unsatisfactory conduct after hearing a misconduct charge. Justice Mandie found:

‘[58] … It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge [i.e. unsatisfactory conduct]. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.’ Continue reading “Misconduct charge no. 21 against Victorian silk stayed as abuse of process”

Justice Gillard says: prosecute the same offence as many times as you like

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”