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”