Di Lorenzo v The Magistrates’ Court of Victoria  VSC 475 was a case in which the Supreme Court spent 2 hearing days on a judicial review of a costs order worth $5,000. One paragraph of it piqued my interest, about the interpretation of provisions which say there should be no order for costs of the proceeding, absent special or extraordinary circumstances. Horrible members of that species of provisions are to be found inside s. 303 of the Legal Profession Uniform Law.
In Cahill v Victorian Legal Services Commissioner  VSC 177 (Keogh J);  VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the proceedings ended in what he regarded as inconclusive circumstances. He prosecuted the practitioner, who successfully sought judicial review on the basis that the Commissioner was not entitled to have a second go at the investigation. The Commissioner appealed unsuccessfully to the Court of Appeal. Apparently, that was the end of it.
This case reaffirms the principle that statutory authorities cannot revisit their final decisions because they change their mind or come to appreciate that they are wrong: Minister for Immigration and Multicultural Affairs v Bhardwaj  HCA 11; (2002) 209 CLR 597, 603; Semunigus v Minister for Immigration  FCA 240; (2000) 96 FCR 533, 540 ; Kabourakis v Medical Practitioners Board of Victoria  VSCA 301 (20 December 2016)  (Nettle JA). Continue reading “Re-raising complaints-(not)”
Nothing is quite as un-fun as argument about transitional provisions, but it is often unavoidable, since disciplinary tribunals are usually creatures of statute, and if the new or the old statute is mistakenly invoked, the Tribunal may purport to exercise jurisdiction which it does not have, with the result that its orders will be nullities which may be disregarded even absent an appeal: The Herald and Weekly Times Pty Ltd v Victoria  VSCA 146 at . I suspect the people who dream up these things would say that counsel have an obligation to assist Tribunals to avoid over-reaching.
This post principally considers Griffin v The Council of the Law Society of NSW  NSWCA 364, a judgment of Sackville AJA with whom Ward and Gleeson JJA agreed, and Council of the NSW Bar Association v Nagle  NSWCATOD 104, a decision of the Hon F Marks, Principal Member.
If you have been the subject of disciplinary orders since 1 July 2015, you might want to dust them off and check whether the correct Applicant sought them under the correct legislation. If not, you might be entitled to disregard them, and require their removal from the disciplinary register.
To save you from having to puzzle over the detail of what follows, here is my summary, which assumes that you understand that Schedule 1 to the Legal Profession Uniform Law Application Act (Vic), which Schedule I refer to as ‘the LPUL’, stands as a law of NSW by virtue of the Legal Profession Uniform Law Application Act (NSW): Continue reading “LPUL’s transitional provisions”
Associate Justice Derham from time to time produces beautifully succinct and thorough summaries of the law, especially laws relating to procedure, in his careful judgments. Busy practitioners are very grateful. Here is his most recent such summary, from Fotopoulos v Commonwealth Bank of Australia  VSC 61. It is a helpful exposition of the substantive legal obligation which is sometimes referred to as an ‘implied undertaking’ or ‘the Harman principle’ after the House of Lords’ decision in Harman v Secretary of State for the Home Department  1 AC 280. Continue reading “The ‘implied undertaking’ which is really a substantive legal obligation”
Update, 10 August 2017: It once seemed to me having read Pizer’s Annotated VCAT Act (2015) at [8.60] that there was an argument to be made that the Evidence Act 2008 might have some operation to the extent that it is not over-ridden by s. 98 of the VCAT Act 1998, in that the Evidence Act 2008 empowers courts to do certain things which might not be described as part of the ‘rules of evidence’ referred to in s. 98. The Evidence Act 2008’s definition of ‘Victorian court’ (in whose proceedings the Act is said to apply) is inclusive of tribunals bound by the law of evidence, rather than excluding all tribunals which are not bound by the law of evidence, and VCAT has been regarded as a ‘court’ for various purposes. But the Court of Appeal has effectively decided (albeit without considering my thought) that the Evidence Act 2008 simply does not apply in VCAT: Karakatsanis v Racing Victoria Limited  VSCA 305 at  – .
Update, 9 August 2017: To gather the law together in one place:
(a) Pizer & Nekvapil, Pizer’s Annotated VCAT Act treats this question at [VCAT.98.160] citing Curcio v. Business Licensing Authority (2001) 18 VAR 155 at ; Pearce v. Button (1986) 8 FCR 408 at 422; Golem v TAC (2002) VAR 265 at [9(iv)]; Secretary to the Department of Infrastructure v Williamstown Bay and River Cruises Pty Ltd  VSC 191 at ; and Medical Practitioners Board of Victoria v Saddik  VCAT 366 at .
(b) A reader commended Justice Giles’s article ‘Dispensing with the Rules of Evidence’ at Vol 7 No 3 Australian Bar Review.
(c) Consider also Danne v The Coroner,  VSC 454, noted here.
Original post: Here is a useful collection of interstate and federal law about what statutes are actually to be taken to mean when they say that a tribunal is not bound by the laws of evidence (like VCAT), from Justice Refshauge’s reasons in Pires v DibbsBarker Canberra Pty Limited  ACTSC 283: Continue reading “Tribunals not bound by the laws of evidence”
Often enough, judges refer the conduct of lawyers appearing before them (or disclosed by the case they are adjudicating) to the Legal Services Commissioner for investigation. A recent example is Re Manlio (no 2)  VSC 130. Judges also refer the conduct of non-lawyer parties to investigative agencies, e.g. where a tax fraud is suggested by evidence in the case.
Generally, this is not done pursuant to any statutory directive or authority. An exception is s. 202 of the Legal Profession Uniform Law which requires the Costs Court to refer a matter to the Legal Services Commissioner if it considers that the legal costs charged, or any other issue raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct. (Compare s. 3.4.46 of the Legal Profession Act 2004 which authorised rather than required the Taxing Master to make a referral.)
I have never been particularly clear about the nature of such a referral, or as to the procedures which ought to be followed. Gibson DCJ set out the principles recently, at least as they apply in NSW, in Mohareb v Palmer (No. 4)  NSWDC 127: Continue reading “Judges’ referrals to the ATO, police, Legal Services Commissioners”
Updates, 3 & 4 February 2019: The NSW Court of Appeal dismissed the Law Society’s appeal in Levitt:  NSWCA 247; meanwhile a decision to like effect was made in AB v Law Society of NSW  NSWSC 1975, the subject of this blog post.
Original post: The NSW Supreme Court has quashed decisions of the NSW Law Society to commence disciplinary proceedings against a Sydney solicitor following complaints that the solicitor advanced allegations of negligence in a costs assessment against two barristers without an adequate factual foundation: SAL v Council of the Law Society of NSW  NSWSC 834, a decision of Wilson J. The Court restrained the Council from continuing the disciplinary prosecution which had been stayed pending the application for judicial review. The Council’s reasons were inadequate in not dealing with exculpatory material advanced by the practitioner during the investigation, and in not disclosing the Council’s path of reasoning in relation to why the conduct was professional misconduct rather than unsatisfactory professional conduct or why it was appropriate to prosecute rather than make an in-house determination such as a reprimand and a compensation order.
The implications of this decision are profound, for many a set of reasons at the conclusion of a disciplinary investigation are likely no better than those which were examined in this case, for the simple reason that no one has ever really sought to take the adequacy of these kinds of reasons to task. First, those who are subject to current prosecutions might seek prohibition to stop them in their tracks: if you are involved in a disciplinary prosecution, careful study of this decision is advised. Secondly, with the rise in the quality of reasons at the conclusion of a disciplinary prosecution which one presumes the decision will generate, it may be hoped that better decisions about what to prosecute will be made. Continue reading “Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate”
Legal Services Commissioner v AL  QCAT 237 is a decision of a disciplinary tribunal presided over by Justice David Thomas, President of QCAT and a Supreme Court judge. It is therefore of high persuasive value, and treats Queensland provisions which are the same as the equivalent Victorian provisions. And it provides what I suggest with respect are the correct answers to the following questions:
- How negligent do you have to be before you can be found guilty of unsatisfactory professional conduct as defined in provisions which say that the concept includes ‘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’ lawyer holding a practising certificate? (Answer at  and : substantial and very obvious fallings short of the standard, established by direct inferences from exact proofs.)
- What must be pleaded specifically in a disciplinary charge? (Answer at  – : all states of mind, not only dishonest intents, and all facts to be relied on (‘the charges to be levelled must be fully and adequately set out in the Discipline Application. As a matter of procedural fairness, the Practitioner should not be left in any doubt as to the extent of the allegations that is to be met.’)
- To what extent is a disciplinary tribunal constrained in its decision making by the allegations specifically made in the charge? (Answer at  – : absolutely: if no state of mind is alleged, the prosecution should not be allowed to call evidence as to state of mind; ‘it would be wrong to admit evidence the principal purpose of which is to establish conduct that lies beyond the ambit of the charge’.)
- Does the mere fact that charges are not allowed on taxation mean that there has been overcharging such as to warrant discipline? (Answer at  – : no)
The Tribunal dismissed charges against a solicitor who lodged a caveat pursuant to an equitable mortgage without checking that it satisfied the Statute of Frauds’ writing requirements and against a partner of her firm who took over her files when she was on holidays and billed the client for the work in attempting unsuccessfully to register the caveat.
I move from the specific facts of this QCAT case to general comment (what follows is certainly not veiled reference to the conduct of the Commissioner’s counsel in QCAT). There is a very real reason to insist on the particularization of states of mind in disciplinary tribunals, including particulars of actual and constructive knowledge. These details do not always get left out just because it is thought that disciplinary tribunals are not courts of pleading and such minutiae is not appropriate. Nor do they just get left out because they are thought to be inherent in the allegation, or because of incompetence, or mere mistake. Rather, they get left out because bureaucrats have investigated incompetently and when competent counsel come to plead disciplinary applications based on the investigation, they do not have a sufficient factual foundation to make these allegations, or perhaps are simply too timid.
But sometimes counsel with civil practices, untutored in the art of prosecutorial restraint, and safe in their private belief that the practitioner is in fact much more evil than incompetent investigation established, might fall prey to temptation. Mealy-mouthed, ambiguous allegations might be made which require the practitioner to get into the witness box. Then, all manner of unpleaded allegations as to states of mind and as to completely un-pleaded conduct, justified in relevance as tendency evidence or circumstantial evidence of the pleaded facts, might be cross-examined out of the practitioner and an unpleaded case presented to the disciplinary tribunal in closing. In a tribunal not bound by the rules of evidence, such questioning may be waved through with lip service to the proposition that objections will be dealt with by according appropriate weight to the evidence in the final analysis. Queensland leads the charge against such conduct, and I can’t help thinking it’s because Supreme Court judges seem to get involved in disciplinary decisions more often up there. All power to them. So impressed am I with this latest judgment, I have decided to go on a study tour of the Sunshine Coast in the September school holidays.
BRJ v Council of the New South Wales Bar Association  NSWSC 146 is the subject of this sister post about the permissible use of evidence of mental impairment. Two aspects of it deserve their own separate post. The respondent barrister changed her plea twice, once after the liability phase of the hearing but before the decision as to liability was given and once the night before the hearing of her appeal in the Supreme Court of NSW. Each time, she was allowed to do so. Continue reading “Lawyers withdrawing ‘guilty pleas’ in disciplinary prosecutions at first instance and on appeal”
In my experience, the Legal Services Commissioner generally assumes that material relevant to penalty is inadmissible at the liability stage. So, for example, the Commissioner applied recently for leave to re-cross-examine a practitioner in a disciplinary hearing, after the close of evidence, in order to adduce evidence relevant to penalty by reference to ‘disciplinary priors’, even though the practitioner did not propose to give further evidence.
I knew there was some case which said that under legislation cognate with the Legal Profession Act 2004 there is, in law, just one hearing, but it is one of those many authorities which, despite this blog, got away from me, never to be found again. But now I have stumbled across it again, and here it is, from Puryer v Legal Services Commissioner  QCA 300, a unanimous decision: Continue reading “Admissibility of material relevant to penalty at the liability stage”
In my last post, I briefly surveyed VCAT’s approach to the Barbaro principle in disciplinary proceedings against solicitors. I just came across a presentation given by the Supreme Court’s Justice Garde, VCAT’s President which touches on this issue. The presentation is titled ‘Alternative Dispute Resolution – Can it work for Administrative Law?’. It was given on 26 February 2014, and is linked to here. The relevant part is: Continue reading “VCAT’s President’s extra-judicial views on Barbaro in VCAT disciplinary hearings”
The Federal Court has given a landmark decision about regulatory prosecutions. In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed outcomes so long as they are ‘within the permissible range’ of penalties. But nor will disciplinary prosecutors be able to submit what the appropriate penalty ought to be. Rather, they will be limited to making submissions about the appropriate sentencing principles, and about similar outcomes in similar cases.
The powerful judgment is at odds with a paragraph of dicta in a recent decision of the Victorian Court of Appeal in that it applies the High Court’s decision in Barbaro, a criminal case, to the quasi-criminal realm. How the case plays out in Victoria remains to be worked out, but if this case goes to the High Court (and both sides have filed special leave applications), all that may change. Certainly the settlement of proceedings by regulators just got more complicated.
There seems to be a discrepancy about fundamental norms of government between the dicta of our Court of Appeal and the ratio of the Federal Court’s decision. Once that gets resolved, however, each piece of legislation setting up the regulatory regime must be construed against the backdrop of those fundamental norms, and might give rise to different outcomes. The Federal Court approached the task of working out how Barbaro applies in regulatory prosecutions in an orthodox fashion, i.e. by a process of statutory construction based on a close textual analysis of the legislative scheme as a whole.
The Chief Justice of the Federal Court allocated three judges to hear a preliminary question in the regulatory prosecution at first instance, in which the parties had already agreed on a proposed outcome, the result of a settlement (or, if you will, a plea bargain). The proceeding was brought against the CFMEU and the judgment’s aim was apparently to sort out once and for all if, and how, the High Court’s decision in Barbaro is to apply in proceedings for a penalty. The mouthful of a case is reported as Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union  FCAFC 59, but seems set to be called ‘the CFMEU Case’.
It’s quite a judgment: indignant, keen to cut cant, and argued from first principles in relation to the place of the courts in civil society. It is a further step in the demolition of the nonsense about disciplinary proceedings being sui generis, fundamentally distinct from criminal prosecutions, and (oh, spare me!) protective and not punitive in a way which means the protection of those against whom punishment is sought need not be extended. The punishment of citizens is, and must be seen to be, a job for the courts (except where parliament has expressly provided otherwise); where the State is seeking to punish citizens the label applied to the proceedings is a distraction; and in such cases, the Courts having been tasked with ascertaining the appropriate penalty, they must do so conscientiously themselves, however convenient it might be for them, for regulators, and for the regulated, to cede that task to a regulator which is part of the machinery of the executive arm of government, and to pay lip service to the inquiry conducted by the Court into the appropriateness of a deal done behind closed doors. So said the Court.
The indignation extends to the many judges and other decision makers who have convinced themselves post-Barbaro that the decision does not apply to them, often on the basis that criminal proceedings are special and proceedings for a penalty are civil proceedings and nothing like criminal prosecutions. Distinguishing Barbaro away has been de jour. Continue reading “Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions”
I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here. Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS  VCAT 649). The answer, according to VCAT’s President, Justice Garde? Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: Continue reading “Summary judgment in a disciplinary prosecution?”
There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination. It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of argument identifying in broad terms what is in issue. And even if such an order is made, compliance will not require the foreshadowing of any evidence or the admitting or denying of any facts.
The other day, a full frontal attack by the Legal Services Commissioner on the privilege in disciplinary prosecutions of solicitors did not result in it being distinguished out of existence. Though there was no contradictor in the hearing, the President of VCAT, Justice Greg Garde, gave the challenge short shrift in LSC v Spaulding  VCAT 292.
Since practitioners started increasingly exercising their right to stay silent after the disciplinary investigation has concluded and before the conclusion of the Commissioner’s case, the Commissioner has begun increasingly to seek orders for the service of a notice to admit, despite the absence of any rule-based regime in VCAT governing the consequences of non-response to such notices. Some practitioners have consented to such orders and VCAT has made them. There may be grounds to review decisions in such cases where the practitioner did not ‘waive’ the privilege, since President Ross said:
‘in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit.’
Waiver as a concept in the law generally requires a high level of deliberate abandonment. No doubt for that reason, the Commissioner began some time ago to alert practitioners to the existence of the privilege when proposing such orders.
President Garde has also made clear that the Tribunal itself has a duty ‘to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege.’
The President also observed that many professionals will wish to make admissions if for no other reason than to be seen to be appropriately cooperative, and to attenuate the issues and so diminish the costs which will be payable if the practitioner loses. My clients often make extensive admissions, sometimes make denials, but often remain silent in relation to some issues and strenuously resist the characterisation of such silences the matters about which they have stayed silent as ‘denials’. There is, however, nothing to be gained from consenting to an order to provide a response to a notice to admit. When, as I have found to be the case, the notices are framed in a manner which purports to graft onto VCAT’s procedures a presumption of admission in the event of non-denial, great procedural uncertainty is generated, because, unlike in the state courts, there are no rules of procedure which provide a legal basis to generate such an admission. And it will often be more convenient for the practitioner to craft the admissions in the form he or she considers most appropriate, possibly in a discursive letter, and at a time convenient to him or her. Furthermore, the notices to admit usually track the allegations in the Application itself extremely closely, regardless of the admissions made during the investigation in correspondence which is annexed to the Application, so that the requirement to respond to the notice to admit is akin to a requirement to serve a defence, and the drafting, filing and service of the notice to admit generates a substantial cost on a party-party basis.
Finally, for some reason, no one ever seeks orders to serve notices to admit on the Commissioner. If, for some reason, one were to consent to orders for the provision of a response to a notice to admit, it would seem appropriate to me to reserve a right to reciprocity. Continue reading “Legal Services Commissioner seeks to overturn privilege against penalties”
VCAT’s latest decision to come to my attention, of Member Elizabeth Wentworth, involved another solicitor who did not lodge tax returns over an extended period. He was suspended from practice for 12 months, but the suspension was suspended provided he did not breach certain conditions in the three years after the orders. If he does, then the Commissioner may apply for the suspension of the 12 month suspension to be lifted so it comes into operation. Member Wentworth decided to leave what exactly would happen in the case of a breach to the discretion of the any future Tribunal constituted to consider it rather than providing automatically for the suspension of the suspension to be lifted. Legal Services Commissioner v GB  VCAT 254 is interesting to me for six reasons: Continue reading “Suspensions which are not suspensions and orders which are not orders”
The Supreme Court of Tasmania has made an important ruling in Legal Profession Board of Tasmania v XYZ  TASSC 33 about the finality of decisions made by legal regulators at the end of disciplinary investigations. The decision suggests that in those jurisdictions with similar statutory provisions, until a disciplinary prosecution is launched, such decisions may be less final than I suspect many lawyers in Australia have previously believed. A decision of the Victorian Court of Appeal, which related to a different situation where one of two courses following a disciplinary investigation was gone down and completed and the professional regulator sought subsequently to go back down the alternative course, was distinguished: Kabourakis v Medical Practitioners Board of Victoria  VSCA 301. Continue reading “Can a legal regulator rescind a decision to bring disciplinary proceedings”
In Flori v Commissioner of Police  QSC 284, a police sergeant was suspected of committing a crime: leaking to News Ltd footage of an incident in respect of which another officer was being investigated by a disciplinary authority for using excessive force. A criminal investigation was launched as a result of the findings of the disciplinary investigation. A search warrant was granted in aid of the criminal investigation, and executed. The sergeant’s computers were seized from his home.
The evidence was incriminating: the email address used to leak the photos was associated with his computer. No prosecution ensued. Instead, disciplinary proceedings were issued. The prosecutors sought to use the evidence seized in the search warrant. The policeman sought a declaration that the evidence was inadmissible. The Supreme Court of Queensland granted the declaration: examining the scheme of the statute which authorised the search warrant, Atkinson J found an implied restraint on the use of the information otherwise than for the purposes of the criminal investigation in aid of which it was granted.
This is an application of established principle (see these previous posts: one, two, three, four), but it is a nice case because its scope is confined exclusively to this issue, and it occurs in the context of a statutory disciplinary regime. The discussion of the law, which commences at , is set out in full below. Continue reading “More on the constraints on the use of information obtained under statutory powers”
In Roberts v A Professional Committee of the Nursing Council of New Zealand  NZCA 141 a nurse had pleaded guilty to having sex with a vulnerable patient. He had been suspended from nursing for three years. The High Court upheld his appeal and reduced his period of suspension to 18 months, precisely as he had requested. It dismissed the cross-appeal, which contended that he should have been deregistered. He sought costs. He got costs of the cross-appeal, fixed at 25% of the costs of the appeal because it had been doomed to fail and should never have been brought. But he failed in his claim for costs of his own appeal though he had obtained in it precisely what he had sought.
Why? Because there were no ‘compelling reasons’ justifying such an order. The High Court noted that unlike disciplinary cases against lawyers, where first instance decision makers were empowered to make orders for and against the legal regulator, costs orders could be made only in favour of the nurses’ disciplinarian. The first-instance immunity to costs of nurses, and the important public function of the maintenance of standards in the provision of healthcare caused the High Court to carve out of quite a prescriptive costs regime in the High Court rules, one of the policies of which is apparently to make costs decisions predictable, a ‘compelling reasons’ threshold. So he did not get costs of his own appeal. He appealed again, on costs. The Court of Appeal allowed his appeal, and found there was no ‘compelling reasons’ threshold to be overcome before costs could be awarded against disciplinary regulators. The judges unanimously said: Continue reading “NZCA stomps on attempt to limit costs against disciplinary bodies”
I have been banging on about the privilege against penalties for a long time. VCAT used routinely to require respondents in disciplinary proceedings to submit witness statements prior to the final hearing. Then the Court of Appeal admonished it for doing so in Towie v Medical Practitioners Board of Victoria  VSCA 157. (That case stands for the proposition, incidentally, still not perfectly understood by people who probably should understand it, that even expert evidence of a respondent need not be filed prior to the close of the prosecution’s case: see the Court at , apparently approving ASIC v Plymin (2002) 4 VR 168 at .)
All this did not stop certain regulators inviting respondents to consent to orders to that effect without bringing the privilege against penalties or Towie’s Case to their attention and serving ‘Notices to Admit’. Some of my clients, keen to save an appearance fee of a few hundred dollars, consented to such orders. Continue reading “VCAT’s Legal Practice List and the Privilege Against Penalties”
Traditionally, the law of professional discipline has differed from the law of negligence in three profound ways. First, its aim is the protection of the public (though the policy in favour of protecting the reputation of the profession grossly infects the purity of this proposition in most analyses). Secondly, it is about personal wrongdoing. Statute aside, there is no law of attributed liability in contrast to doctrines such as vicarious liability in the law of negligence. And thirdly, simple as opposed to gross negligence was never considered to warrant discipline. Things got messed up by the introduction into disciplinary statutes of a concept of unsatisfactory professional conduct defined in terms identical to the test for simple professional negligence.
Disciplinary tribunals (and, in my experience, disciplinary investigators and prosecutors) seem to lapse from time to time into the language of ‘should have known’ even outside the prosecution of that species of unsatisfactory professional conduct which is defined by reference to the test of simple professional negligence. Two practitioners had to go to two Courts of Appeal to reverse decisions on dishonesty charges which were horribly infected by objective reasoning: Legal Services Commissioner v Brereton  VSCA 241 and Giudice v Legal Practitioners Complaints Committee  WASCA 115. Surprisingly, the former decision did not get a guernsey in the latter. The law of recklessness is authoritatively restated in the three separate judgments in Giudice and I have set the whole lot out below along with some observations about Brereton’s Case. Continue reading “WASCA on the kind of recklessness in making statements which amounts to conduct warranting discipline”