• that the Institute was just a contradictor, assisting the Court by ensuring that it had two views to choose from, and was akin to an amicus curiae;
• that it would have been entirely inappropriate for a professional regulator such as the Institute to consent to the relief sought by the appeal;
• that the cases which say that ‘costs ought not to be awarded against a statutory tribunal which makes an order in excess of its powers unless it can be demonstrated that the tribunal has been guilty of serious misconduct or corruption or has acted perversely’ are relevant (‘this submission is entirely misconceived. The Institute is not a tribunal. Rather, it appears before the Tribunal as a party. Its function is that of prosecutor. No question arises here of the Tribunal’s costs, since the Tribunal did not appear.’);
• it was relevant that parliament had directed that costs of the Full Tribunal hearing were not to be awarded against the Institute save in exceptional circumstances (s. 162, Legal Practice Act, 1996; see now Victorian Civil and Administrative Tribunal Act 1998, Sch 1 cl 46D(3));
• because it made no submissions as to penalty, the Institute did not lead the Tribunal into error.

There are a couple of other points made by the decision of interest exclusively to hard core professional discipline lawyers:

• ‘The evident policy of [the no costs against the prosecutor at first instance save in exceptional circumstances provision] is that the Institute should not be deterred by the risk of an adverse costs order from prosecuting charges of misconduct before the Tribunal. That is a very important function, carried out in the public interest: See New South Wales Bar Association v Thomas [No 2] (1989) 18 NSWLR 193, 210B (Kirby P)’;
• The Institute failed to take the hint given by the Court in an earlier hearing in which the Institute unsuccessfully opposed a stay of the Full Tribunal’s orders (PJQ v Law Institute of Victoria [2005] VSCA 326), and that was not an irrelevant consideration.

In Law Institute of Victoria Limited v PJQ [2005] VLPT 8, the Full Legal Profession Tribunal came down hard, accepting the expert opinion of a man without a law degree that appropriate legal costs for a proceeding of the kind in which the solicitor had represented his client were half what he had charged, and suspending the solicitor from practice for 12 months. To the surprise of the President of the Court of Appeal, the Tribunal made no mention of the alternative to suspension represented by the undertaking despite going through the ritualistic ‘no punishment happening here’ recitations (‘Our task does not involve punishment of the legal practitioner. Our task is to provide for the protection of the public, including deterrence of the legal practitioner and the profession generally from like conduct…’; ‘Conscious of the necessity to place the barrier high before depriving a member of the profession of their practising certificate we have given all the circumstances of this case the most careful and repeated consideration.’ etc.).

President Maxwell, with whom Justices Chernov and Nettle agreed, held that the Tribunal’s inexplicable failure to mention in its reasons the undertaking offer suggested that its sentencing discretion had miscarried.  His Honour actually acknowledged with refreshing forthrightness that penalisation is part of sentencing for professional discipline offences, but, by his words, sought to give real meaning to the concept that protection of the public is what professional discipline is all about, by quashing the Full Tribunal’s orders and, on resentencing, making no orders in recognition of the substantial costs already incurred by the solicitor and the partially endured suspension:

’31 … the Tribunal’s protective function is paramount. Thus, where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.

32 In my opinion, the Tribunal was here faced with just such a choice. Counsel for Quinn had offered the Tribunal an undertaking to have his bills of costs independently assessed. This undertaking was offered apparently without limit of duration. As Buchanan JA and I said when granting a stay of the suspension, the imposition of a continuing obligation of that kind would seem likely to afford considerably greater protection to the public than a period of suspension, unaccompanied by any requirement of training or further education, followed by a resumption of unsupervised practice. Put simply, compliance with the undertaking would ensure that there was no recurrence of the overcharging which occurred here.

33 As I have mentioned, the Tribunal’s otherwise careful reasons for decision make no mention of the proffered undertaking.^[4] The Tribunal said that it had considered other options short of suspension but in my view, because of the long-term protection which the undertaking offered the public, that course required separate consideration and evaluation.

34 The Tribunal having given no explanation for rejecting this alternative, I have concluded that its exercise of discretion miscarried. Quinn was entitled to know why the offer of an undertaking was unacceptable. His misconduct was very serious but – contrary to the Institute’s submission – it was not “of the utmost seriousness”. Overcharging by falsely claiming for work not done is much more serious than overcharging because excessive work has been done, as was the case here. With respect to the Tribunal, it is not apparent why Quinn’s conduct was seen to be “so grave that the only course open” was suspension, particularly given the unchallenged evidence about his depressive illness.’

The Law Institute corresponded with the solicitors in this matter between 1998 and October 2000. The CEO Ian Dunn, wrote what is known in the game as “a Murray letter” on 16 October 2000. That is a letter summarising the tentative conclusions of an investigation giving a practitioner a final opportunity to comment before a final decision to lay a charge. The two solicitors in this case were given 7 days in which to respond. One of them replied at length and indicated he did not desire an extension of time, the other did not request an extension. Later, their lawyers took the point that the charge was invalid and the Tribunal’s jurisdiction not properly invoked. The Tribunal found it had jurisdiction. The Court of Appeal had no jurisdiction to entertain an appeal in relation to this aspect of the Tribunal’s decision because, it found, the finding that sufficient time had been afforded was a question of fact, and it had jurisdiction only to hear appeals on a question of law. Nevertheless, the majority ventured some dicta.

In dealing with another ground of appeal, the Court of Appeal had said at [38]:

“The [Legal Practice Act, 1996] introduced … a new regulatory scheme and a new procedure governing the disciplinary process for members of the Victorian legal profession. A comparable regime was introduced in New South Wales by the Legal Profession Act 1987. The New South Wales scheme has been considered in Barwick v. Law Society of New South Wales[16]; The Law Society of New South Wales v. Boland[17]; Walsh v. Law Society of New South Wales[18]; and Murray v. Legal Services Commissioner[19]. In Barwick, Kirby, J. said[20] of the New South Wales scheme -

‘It was part of a general reform of procedures for the handling of complaints against legal practitioners outside the inherent jurisdiction of the Supreme Court. The object of that reform was to secure greater transparency in the determination of complaints and to establish new institutions for the process but with balancing provisions designed to afford procedural and other safeguards for the practitioner involved. These safeguards should not be narrowly construed. In its comment on the approach to a new system for handling complaints against legal practitioners, the New South Wales Law Reform Commission remarked that: Lawyers should never be subjected to procedures which arbitrarily or unfairly do harm to their reputations or qualify or remove their practising rights. The Commission makes a number of recommendations … aimed at improving the level of procedural fairness for a lawyer who is the subject of a complaint. For example, the Commission proposes that there be a limitation period on complaints … ‘.

Similarly in Walsh, McHugh, Kirby and Callinan, JJ. observed[21] -

‘Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal profession formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed. … The provisions of the Act must be complied with.’

At [46] to the majority said:

1. … Ground 5 alleges that the tribunal erred in not holding that upon the proper construction of s.151 of the Act, alternatively by law, the RPA was obliged before bringing a charge in the Tribunal to afford the affected practitioner an adequate opportunity to respond to the proposed charge, and in not further holding that any proceeding begun in the Tribunal in disregard of such requirement was vitiated. Ground 6 claimed that the proceeding had not been validly brought against B having regard to the requirement that he respond to Mr Dunn’s letter of 16 October within seven days. Both grounds rely on the practitioner’s entitlement to natural justice, as expounded in Murray, where it was held by the New South Wales Court of Appeal that the legal practitioner’s entitlement to be heard necessarily entailed the right to see a copy of the complaint, and that failure to provide the practitioner with a copy of the complaint in advance and an opportunity to respond vitiated the institution of the proceedings against him.
2. … It may at once be accepted that the practitioners were entitled to natural justice and to be given reasonable notice of the complaints made against them before charges were laid. It was argued for B that a practitioner under investigation must be given a copy of the complaint and an opportunity to answer it before a charge is laid. The submission was that Mr Dunn’s letter of 16 October 2000 did not comply with the requirements of Murray’s case because the letter did not itemise the dealings alleged against the practitioner or adequately specify the matters of disgraceful or dishonourable conduct alleged against him, did not ventilate all matters of misconduct addressed in the charges subsequently filed and required a response within a period of seven days.
3. In our view these grounds are not made out and, furthermore, no question of law is in any event involved. The matters alleged against both B and G had been the subject of detailed communications between the RPA and the practitioners over an extended period going back to 1998. The facts involved were not particularly complicated. In substance, it was alleged that in a number of different transactions B and G had mixed their own affairs with their clients, preferred their own interests, acted where conflicts of interest arose with their clients, preferred the interests of one group of clients to another and failed to disclose to clients the true nature of their (the practitioners’) own interests. …
4. … our view is that neither of grounds 5 nor 6 has been made out. B, who was represented by Mr O’Connor, a solicitor, at the time chose not to complain that the time given was insufficient. In rejecting the claim that inadequate time and particularisation were given, the Tribunal made a finding of fact, and no question of law is in our view raised by these grounds. We accordingly reject them.”

The decision turned on its unusual facts of years of investigations. Before applying the decision to another case, it is necessary to consider all the facts set out more fully in the judgment.

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)

A solicitor’s right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence.

After an eight day hearing, the Full Legal Profession Tribunal cancelled the solicitor’s practising certificate, prohibited him from reapplying for a certificate for 3 years, and ordered him to pay costs of $51,500 (the Law Institute had claimed $76,000 for senior and junior counsel, and $16,500 for its own employees’ time though no solicitors were retained by it and for which it was awarded $10,000, a total of $92,500). The solicitor appealed on a question of law and sought a stay, but the stay was refused. The appeal failed except as to costs, which were reduced by $21,000, being the fees of senior counsel whose involvement was described as “quite unnecessary” except in relation to one limited point of law, the argument of which could not have taken more than a day.

The solicitor’s wife had sued the mortgagee of her property for damages for selling it up at an undervalue. An issue in the proceedings was whether a boundary between two titles sold as one lot was encroached by the house (in which case, it was better to sell as one lot than if the two properties did not have that problem when consideredly separately). The wife engaged a surveyor as a potential expert witness. The surveyor faxed the solicitor a copy of an undated anonymous survey plan previously prepared by someone else.

The solicitor allowed his wife’s counsel to open the case on the basis that there was no survey plan in existence, and did not discover the facsimile of the document (which was relevant under the Peruvian Guano test, that is, not on the basis that it was directly relevant to a matter in issue in the proceedings, but on the basis that it would have put the counterparty onto a train of enquiry which may have led to the idenfication of directly relevant evidence (see [13] to [14]). The solicitor’s problems on appeal were (i) that although when the existence of the plan came out at the trial of his wife’s action, his wife claimed privilege over the surveyor’s cover sheet she did not do so in respect of the attached survey plan, despite a claim probably having been available under the Propend Finance principle that copies of non-privileged documents may be privileged if brought into existence for a privileged purpose (here, for use in the litigation), and (ii) that he had not been particularly forceful in the privilege submissions before the Full Tribunal. Besides, the Full Tribunal had said, it did not matter whether the document was privileged or not; it still had to be discovered.
The failure was a failure to comply with the relatively new ongoing duty of discovery. This failure was said to be reasonably regarded as disgraceful and dishonourable by fellow professionals of good repute within the test in Atkinson v. General Council of Medical Education and Registration [1894] Q.B. 750; Re a Solicitor ex parte The Law Society [1912] K.B. 302; Myers v. Elman [1940] A.C. 282; Re a Solicitor [1960] V.R. 617. Where the Courts make no attempt whatever to rail against the universal practice of discovering privileged documents under cover of a general claim for privilege, and without enumeration, it seems harsh to require such enumeration in compliance with the ongoing duty of discovery.

The limits of an appeal “on a question of law” from the Full Tribunal to the Court of Appeal were illustrated by the Court’s refusal to consider the argument that a finding (that his wife’s failure to make proper discovery was a result of the solicitor’s “own volition”) was unsafe for being against the weight of evidence. Only if that finding were based on no evidence could a question of law been raised: Fidgeon v William Abbott & Associates [2003] VSCA 5. Similarly, the appeal against sentence failed at the first hurdle: the solicitor’s “attack on the penalty as being excessive could only succeed if he showed that the penalty was manifestly excessive, that is, obviously outside the range of penalties reasonably open to the Tribunal, so as to demonstrate that the penalty discretion had not been properly exercised”. That was not the case here. The comments in this regard were interesting:

32… At the request of the Court, the Law Institute has since the hearing supplied copies of decisions of the Tribunal (and its predecessors) in some 21 cases, spanning the period February 1992 – September 2005. In each case, the disciplinary tribunal cancelled the practitioner’s practising certificate. The periods of cancellation ranged from three years to seven years. A three year cancellation was imposed in seven of the 21 cases. In eight others, the period of cancellation was five years.

33 The assistance to be derived from these decisions is, necessarily, limited. With one exception, the cases did not involve misconduct comparable to that in which [the solicitor] was found to have engaged. They concerned conduct ranging from trust account breaches to misuse of clients’ funds, gross inattention to clients’ matters and practising without a practising certificate. All that can be said of those decisions is that they make it quite clear that the disciplinary tribunal has consistently shown itself ready to impose substantial periods of cancellation – three years and upwards – for what it regards as serious misconduct.

34 The only case which bears any real similarity to the present is one which was decided in December 2002. The misconduct was constituted by misleading the Court. The practitioner had included in a Magistrates’ Court Complaint a claim for extras of $1500 when he knew that no such extra costs had been, or were likely to be, incurred. The practitioner was found guilty of misconduct and his practising certificate was cancelled for a period of three years. As with the present case, this was a single instance of misconduct, involving a breach of the practitioner’s paramount duty not to mislead the court.

35 Against that background, it does not seem surprising that the Law Institute, as the body responsible for regulatory supervision of the profession, submitted to the Tribunal that an appropriate penalty in the present case would be cancellation of [the solicitor's] practising certificate for a period of two to three years. That submission no doubt reflected both the extensive experience of the Law Institute in disciplinary proceedings against practitioners and its assessment, based on that experience, of the relative seriousness of the misconduct in question.”

Graeme Uren with Martin Randall for the LIV, solicitor in person.