In the latest Byrne v Marles ([2009] VSC 210), Justice Beach seems to have found that any particular allegation made by a complainant may properly be characterised as both a civil and a disciplinary complaint. If the Legal Services Commissioner receives a complaint, she must investigate it to the extent it is a disciplinary complaint [...]
Entries Tagged as 'civil-disciplinary interplay'
Distinguishing between civil and disciplinary complaints
June 4th, 2009 · No Comments
Tags: Discipline · Legal Services Commissioner · Professional fees and disbursements · civil-disciplinary interplay · costs disputes
Criminal prosecutions (-not) by disciplinary authorities
April 22nd, 2009 · No Comments
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 [...]
Tags: Criminal liability · Discipline · civil-disciplinary interplay · judicial review
Solicitor gets three year break for multiple conflict findings
November 29th, 2008 · No Comments
In Legal Services Commissioner v DJMH [2008] VCAT 2301, Deputy President McNamara’s tribunal ordered the solicitor not to practice before 1 July 2011 for multiple findings of acting in the face of a conflict. It is unfortunate that the reasons for decision do not allow an understanding of what was alleged. It had something to [...]
Tags: Discipline · Ethics · Misconduct · civil-disciplinary interplay · common law · concurrent duties · conflicts · duty and duty
The practising certificate suspension challenge that went wrong
October 21st, 2008 · No Comments
Update, 8 November 2008: When I wrote this post, the Court of Appeal had authoritatively answered another of the questions posed below, about the penalty privileges, but I had not yet read the case, CT v Medical Practitioners Board [2008] VSCA 157. Now I have, and I have posted here about it.
Original post: WPE v [...]
Tags: Discipline · Misconduct · Practising certificates · Professional regulation · VCAT Act · civil-disciplinary interplay · costs · procedure · prosecutors' duties · regulators' duties
Confirmed: your client can privately prosecute you for misconduct
June 3rd, 2007 · No Comments
Acting President Bowman handed down a decision on Friday in Cedric Naylor’s Case [2007] VCAT 958 approving the existing practice of VCAT, and before it the Legal Profession Tribunal, of entertaining professional misconduct allegations against lawyers by their clients as part of applications to set aside costs agreements. Entertaining them, that is, outside the disciplinary [...]
Tags: Discipline · Legal Practice Act · Misconduct · Professional fees and disbursements · Unsatisfactory conduct · civil-disciplinary interplay · jurisdiction · procedure · setting aside costs agreements
Can you be prosecuted for mere negligence?
January 17th, 2007 · No Comments
There is no doubt that mere negligence cannot constitute misconduct in the traditional concept of that expression: Myers v Elman [1940] AC 282 at 288; Re Hodgekiss (1959) 62 SR(NSW) 340 at 351; Re Veron (1966) 84 WN (Pt 1) (NSW) 136 at 143 (CA); Re Miles (1966) 84 WN (Pt1) (NSW) 163 at 173 [...]
Tags: Discipline · Misconduct · Unsatisfactory conduct · civil-disciplinary interplay · negligence as disciplinary breach
Daming He’s experience of the legal regulators
December 16th, 2006 · No Comments
The unsuccessful complaint to the Legal Ombudsman, referred by her to the Victorian Bar, took more than 5 months to complete. Then the Law Institute complaint went on for about 2 months. The Legal Profession Tribunal made a decision 10 months later, the Full Legal Profession Tribunal 3 months later again. The Court of Appeal [...]
Tags: Discipline · Legal Practice Act · Negligence · civil-disciplinary interplay · regulators' duties
The subject matter of Daming He’s complaint
December 16th, 2006 · No Comments
Update: 17 January 2008 VCAT has re-heard this case, and has made different findings of fact from some of those recounted below. See He v A & Co Pty Ltd [2008] VCAT 3.
Original post
(This is part 2 of the post about He v A & Co Pty Ltd [2006] VSCA 150; [2006] VSCA 235. Part [...]
Tags: Discipline · Legal Practice Act · civil-disciplinary interplay · regulators' duties
Justice Gillard gives the Law Institute a bloody belting
April 10th, 2006 · 1 Comment
SPB v Law Institute of Victoria [2005] VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c)
Solicitors who read the back pages of the RPA News (dubbed the “sports pages”) well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public excoriation [...]
Tags: Uncategorized · civil-disciplinary interplay · prosecutorial failures · regulators' duties
A very generous approach to a Hungerfords damages claim tacked onto a misconduct prosecution
April 1st, 2006 · No Comments
Law Institute v KTBH [2006] VCAT 350 (Senior Member Howell)
There were separate disciplinary and negligence proceedings against the solicitor over the same facts. At the end of the disciplinary hearing, and on the basis of the prosecutrix’s submissions, Mr Howell decided to determine the negligence case and get the whole thing over and done with. [...]
Tags: Discipline · Misconduct · Negligence · Unsatisfactory conduct · civil-disciplinary interplay · common law · prosecutors' duties

