Here is a landmark English case on illegally obtained evidence in civil proceedings: Imerman v Tchenguiz [2010] EWCA Civ 908, and CMS Cameron McKenna’s case note.  A husband in business with his wife’s brother separated from his wife.  Worried that he would hide assets from the wife, the brother copied information from the husband’s computer.  The English Court of Appeal refused to admit the evidence.  One of the little changes wrought by the Victorian Evidence Act, 2008 is to make clear that illegally obtained evidence may be inadmissible in civil proceedings as much as in criminal proceedings.

Then there is a mega-solicitor’s negligence decision from NSW’s District Court’s Judge Levy: Mills v Bale [2010] NSWDC 162.  It was a regretted settlement case of the kind I wrote about in ‘Compromise of litigation and lawyers’ liability’ (2002) 10 Torts Law Journal 267.  The client accepted a fraction of his claim on the basis of advice that the other side had ‘damning video evidence’ and that he might get nothing if he went to trial. The solicitor had no file note of the relevant conversation and no recollection of the alleged events. The client won more than $700,000, a rare victory since such cases do not often succeed. The judgment is 807 paragraphs long.  Analysis of the witnesses’ credit occupies 100 paragraphs.

Two from Victoria’s Court of Appeal:

• First, Justice of Appeal Ashley with whom Acting Justice of Appeal Beach agreed, pronounced the latest chapter in the extraordinary saga of Shaw v Gadens Lawyers, another victory for professional negligence specialist Sam Tatarka.  It has not been published on Austlii, but was delivered on 3 August 2010. The Court confirmed that when VCAT determines civil disputes involving compensation claims, they do not entertain a cause of action created by the Legal Profession Act, 2004.  Rather, they are given a statutory grant to hear professional negligence cases according to common law principles.  Let me know if you want a copy.
• Secondly, the latest in the saga of Byrne v Marles (see this earlier post about the earlier decision which threw the Legal Services Commissioner’s office into chaos): Byrne v Legal Services Commissioner [2010] VSCA 162.  Mr Byrne successfully sought judicial review of the Commissioner’s decision to characterise a complainant’s complaint as a disciplinary complaint.  The Appealohs held that there was a breach of natural justice in failing to provide an opportunity for the solicitor to be heard on that question.  The Commissioner appears then to have written to every complainant and given them an opportunity to make submissions.  Mr Byrne made submissions, and the Commissioner, unmoved, came to the same decision.  He sought judicial review of that, and that is what this decision is about.  He failed, but along the way, had the former Commissioner re-spanked.  The former Commissioner’s reasons for reaffirming her original classification, absolutely typical of the reasons I have seen her give in a template-like manner, over and over, were described by Justice of Appeal Ashley at [96] as ‘too smart by half. They invited further proceedings’.  In fact, his Honour found at [63] that they were not reasons at all; they were just a statement of the conclusion which the reasons should have supported.

Another decision of the utmost importance to this blog, which again passed me by, is the decision of New Zealand’s Supreme Court (equivalent to our High Court) in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1; [2008] NZSC 55.  More to come, needless to say.  Meanwhile, You will appreciate my interest in the case when you consider that the Chief Justice opined that disciplinary proceedings making serious allegations should be proved on the criminal standard of proof (remember what Justice Finkelstein said about disciplinary proceedings?), as opposed to the civil burden as explained in Briginshaw v Briginshaw.  Paragraph no. 1 of the Chief Justice’s reasons said:

‘The appeal concerns the intersection between criminal prosecution and professional disciplinary action taken under statutory authority. It raises the question whether it may amount to an abuse of the statutory disciplinary power to charge a dentist with indecent assault, despite his previous acquittal in criminal proceedings in respect of three incidents which are the subject of the disciplinary charges and despite the fact that the fourth claim has not been the subject of criminal proceedings at all. A related but subsidiary question arises as to the standard of proof to be applied by a disciplinary body. These questions are not adequately addressed simply by labelling proceedings as “civil”, a classification which is not accurately applied to statutory disciplinary proceedings and which is not in any event determinative of either abuse of power or the appropriate standard of proof. Nor is it adequate to say that a principal purpose of professional disciplinary processes is maintenance of standards, in protection of the public, rather than the punishment of criminal conduct. Criminal law, too, aims to protect the public through enforcing minimum standards of behaviour.’

I got onto it by reading the latest (2010) edition of Lawyers’ Professional Responsibility in Australia and New Zealand, by that marvel of text book writing, Professor Gino Dal Pont.  I was unsure about the good sense of buying this new edition, but this reference has made it worth every cent already.

First, I have posted before about the application of the privilege against penalties to disciplinary proceedings, and about what Justice Finkelstein said in Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620:

‘I would hold that a regulatory body that brings a civil proceeding to recover a penalty is under an obligation similar to that owed by a prosecutor to an accused.’

Secondly, in addition to this principle, many bodies and statutory officers charged with prosecuting professionals are governed by the governments’ model litigant rules.  Victoria’s Legal Services Commissioner is a model litigant, and so is governed by these guidelines (which include an obligation to avoid litigation where possible, to keep the costs of litigation as low as possible, and not to take advantage of respondents to disciplinary charges who lack the resources to litigate the disciplinary claim).

But where a barrister is involved in the prosecution, it is, at least in Victoria, surely the application of the conduct rules in criminal proceedings which comes closest to requiring the kind of conduct which Justice Finkelstein considers to be appropriate.  And this is the third thing.  The Victorian Bar’s practice rules define ‘criminal proceedings’ as follows:

‘includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or deregistration (or the equivalent).’

Part V of the rules is specifies particular duties of counsel in criminal matters.  They include rules requiring the counsel:

• To call all witnesses whose testimony is not plainly unreliable and whose evidence would be admissible in relation to a matter in controversy and necessary for the presentation of the whole picture (unless the respondent consents to their not being called). (Rule 139)
• To disclose to the respondent as soon as is practicable all material available to the counsel acting as prosecutor or which the prosecutor becomes aware of which could constitute evidence relevant to whether the respondent is guilty or not of professional misconduct or unsatisfactory professional conduct. (Rule 141)
• To inform the respondent of any grounds the prosecutor has for believing that evidence was obtained unlawfully or improperly.  (Rule 143)
• Not to ask questions of the respondent except in the presence of his or her lawyer. (Rule 144)

Some of the obligations on defence counsel also tend to advance the interests of professionals facing disciplinary proceedings:

• ‘Notwithstanding a barrister’s duty to the court to conduct proceedings as expeditiously as the interests of justice require, a barrister appearing for the accused is under no duty, other than by compulsion of law, to disclose to the court or to the prosecution the nature of the defence case.’ (Rule 153)
• ‘A barrister appearing for the accused should not make admissions of fact or consent to the absence of prosecution witnesses without first obtaining instructions.’ (Rule 153)

The defamation claim was dismissed summarily by reference to a statutory absolute privilege defence.  Judge Gibson suggested in dicta that the common law equivalent was of only qualified privilege, a finding which was said to be consistent with Mann v O’Neill (1997) 191 CLR 204, but apparently inconsistent with the Full Court of the Supreme Court of Victoria’s decision in Hercules v Phease, which said that the publication of a complaint about a lawyer is an occasion of absolute privilege.  Mind you, the District Court’s attention does not seem to have been drawn to Hercules v Phease. The injurious falsehood claim was not summarily dismissed, because the statutory protection did not apply, and likewise the misleading and deceptive conduct claim.  Judge Gibson was not even prepared to find, at this early stage of the proceedings, that the writing of the letter was not an activity in ‘trade or commerce’, suggesting that ‘the bringing of complaints has long been regarded as conduct being capable of giving rise to a cause of action under s 52 Trade Practices Act 1975 (Cth): Merman Pty Ltd v Cockburn Concrete Ltd (1988) 84 ALR 521.’

The controversial letter read as follows:

‘I understand it is now an obligation of medical practitioners in New South Wales to report flagrant breaches of standards of professional practice or competence.  … I was retained by the Crown Solicitor’s Office as an expert witness in a personal injury matter. The plaintiff’s solicitors engaged [the subject of the complaint], specialist psychiatrist, to prepare an expert opinion. …. I was called to give evidence at 2 pm … I arrived at the requested time, and sat in the court while [the subject of the complaint] finished giving her sworn evidence. Her opinion was based on her unusual beliefs about side effects of psychotropic medication. While I am concerned about [her] professional standards, and unnecessary costs to society as an expert witness, her behaviour in court was of greater concern. [She] was asked on repeated occasions whether the New South Wales Medical Board had placed conditions on her registration. Each time [she] denied it. In essence, [she] not only displayed a disregard for the NSW Medical Board, but she committed perjury, a criminal offence.’

Incidentally, the compulsory reporting procedure is to be found in s. 71A of the Medical Practice Act, 1992 which says:

‘(2) A registered medical practitioner who believes, or ought reasonably to believe, that some other registered medical practitioner has committed reportable misconduct must, as soon as practicable, report the conduct to the Board.’

‘Reportable misconduct’ is where a doctor

(a) practises medicine while intoxicated by drugs (whether lawfully or unlawfully administered) or alcohol,

(b) practises medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person,

(c) engages in sexual misconduct in connection with the practice of medicine.

‘[18] The argument that the Tribunal failed to comply with the Briginshaw principles should be rejected … because … those principles do not apply routinely just because the matter involves a complaint of disciplinary misconduct or unsatisfactory professional conduct.

[19] The facts which were in issue in this case did not give rise to any matter of gravity with respect to teh character or behaviour of the practitioner.  It is therefore not to be assumed that there was any requirement on the Tribunal to be satisfied to the level of comfort which the Briginshaw principle requires.’

The Supreme Court quashed the decision because the Board switched from considering these allegations as a breach of a code of conduct to considering them as an allegation of professional misconduct at common law without adequately bringing the switch to the unrepresented psychologist’s attention.  Also because the reasons were inadequate.  Justice Blow engaged in a mini-review of recent cases about health professionals and sex with former patients:

’54 The relevant considerations were discussed by Harper J in Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997, BC9707354. At BC15 – 17, his Honour said the following as to the question of whether a psychologist’s conduct amounted to misconduct:

“In my opinion the fact that the professional relationship had ended at the time the sexual relationship commenced is not of itself determinative. The appropriate test must be whether a sexual relationship would exploit the client or put the health of the client at risk. …In my opinion to confine the concept of exploitation to duress, manipulation, coercion or pressure would be to abrogate the therapist’s responsibility to make a professional decision to refrain from submitting to the wishes of the client or even a former client. A member of a profession who for purely personal reasons accedes to a client’s request, and thereby obtains a personal benefit, knowing that to do so will jeopardise the client’s objectively and professionally ascertained interests, exploits the professional relationship, and therefore exploits the client: on this hypothesis, the opportunity to obtain the personal benefit arises from the fact of the professional relationship. A psychologist who enters into a sexual relationship with a client or former client at that person’s request, and who does so when he knows or ought to know that he is thereby putting the other’s health (mental or otherwise) at risk, acts unprofessionally. This is particularly so where transference may still operate so as to induce the client to seek the intimacy. It seems to me that consent in these circumstances cannot be an answer to an allegation of misconduct.”

55 There are a number of relevant Australian cases concerning relationships between medical practitioners and former patients. The medical profession does not have a firm rule prohibiting all sexual relationships with former patients, nor does it have anything like the inflexible two-year rule now applicable to psychologists. I know of no other profession that has such a rule, and I suspect that only the priesthood has a stricter rule.

56 In Re a Medical Practitioner [1995] 2 Qd R 154 at 162, Dowsett J, constituting Queensland’s Medical Assessment Tribunal, referred to a number of factors relevant to the evaluation of impropriety when there is a complaint about a sexual relationship between a doctor and a patient. His Honour said that “modern concepts of egalitarianism militate against assessing impropriety upon the assumption that the medical practitioner is automatically in a superior social or economic position”, and that “it is inappropriate to assess impropriety upon the assumption that a woman is socially, morally or intellectually less well-equipped to deal with the emotional aspects of life than is a man.” At 163 – 164, his Honour listed “a number of themes running through the traditional approach to misconduct of this kind by medical practitioners”, including the following:

“1 The practice of medicine involves intimate access to the body and psyche of the patient.

…

3 A medical practitioner is therefore in a position of special trust toward and power over a patient.

4 The need for medical care and the sympathetic way in which such care is likely to be provided render the recipient at risk of becoming emotionally involved with and/or dependent upon the provider.

…

6 A medical practitioner must be aware of these risks and ensure that his or her conduct does not aggravate the position, that no advantage is taken of any such susceptibility, and that there is no abuse of the practitioner’s special position.

7 A medical practitioner who becomes aware that a patient has developed a romantic attachment to him or her must take steps to sever that attachment. Normally, the doctor and patient relationships should be terminated.

8 A medical practitioner who becomes romantically attached to a patient should realise that his or her own objectivity and capacity to provide appropriate treatment have been impaired and terminate the doctor and patient relationship.

9 Where the romantic attachment is solely on the patient’s side, whilst it will be unwise to continue treating the patient, it will not necessarily be professional misconduct to do so, save where the efficacy of continued treatment may be impaired by the attachment or where the patient may suffer further harm.

10 Where there is romantic attachment on the part of the practitioner, it may be professional misconduct not to terminate the doctor and patient relationship, even in the absence of any acts of intimacy. Each case must be considered on its merits. The considerations referred to in paragraph 9 will again be relevant.

11 It is professional misconduct to engage in acts of intimacy with a patient whilst the doctor and patient relationship continues.

12 It is professional misconduct to exploit a discontinued professional relationship. Thus a medical practitioner should only commence or continue an association with a former patient if there can be no suggestion that he or she is exploiting a dependency created in the course of the professional relationship.

…

18 The gravamen of this misconduct is breach of trust, misuse of power and exploitation of vulnerability. Sexual misconduct is only an example of such misconduct.”

57 In A Practitioner v The Medical Board of Western Australia [2005] WASC 198, Commissioner K Martin QC said the following at pars28 – 30:

“28 … a former patient’s interests are as well capable of being inappropriately jeopardised, if a medical practitioner in some way exploits the professional credibility established by a prior therapeutic relationship in order to pursue personal ends or objectives, to the prejudice of the former patient. Moreover, it would be intolerable if a medical practitioner were able to cynically terminate an existing therapeutic relationship with an eye to the future, so as to pursue a personal objective with a patient, once the shackles of the professional relationship had been removed.29 A second general observation I make is that many of the disciplinary cases which have gone on further to be decided by courts, concern sexual relationships developed consensually as between a practitioner and a patient, or, as between a medical practitioner and a former patient. In those sexual relationship cases, there is an obvious concern that a patient’s interests may have been compromised arising out of the imbalance of power between the medical practitioner and the patient. The potential for the will of the patient in that situation to be unwittingly overborne as a result of undue influence, is great.

30 Observations have been made concerning a particular susceptibility of patients of medical practitioners in the fields of gynaecology and psychiatry, where the intimacy of the professional relationship is such that there is grave risk that a patient’s interests may be compromised, if the professional relationship develops towards a personal relationship. A patient may not realise for many years after the establishment of a personal relationship, that in fact they have been subjected to influences which have compromised their ability to actually make a free choice concerning the entry into and maintenance of the personal relationship. The term ‘exploitation’ is frequently used in this context to indicate that the practitioner has taken advantage of a power imbalance arising as a result of the professional relationship, to the detriment of the patient’s interests, either short term or long term.”

58 In RJT v Nurses’ Board of Victoria [2000] VSC 498, Nathan J said at par44:

“There is no need for contemporaneity between the practitioner/patient relationship and the conduct complained of, for it to amount to unprofessional behaviour. A medical practitioner may abuse his or her professional position by exploiting the relationship for the purposes of sexual gratification and thus act unprofessionally.”

59 Cato v Medical Board of Victoria, unreported, Supreme Court of Victoria, 21 June 1985, BC8500201 is an example of a case in which sexual activity with a former patient was held not to amount to “infamous conduct”. An allegation that the doctor had had sexual intercourse with a patient during a home visit was not proven. Although the sexual relationship had commenced within days after the home visit, Beach J regarded the making of arrangements to meet socially as terminating the doctor/patient relationship. There was no suggestion that the doctor had taken advantage of a power imbalance or anything of that nature. He was a general practitioner, who had met the patient when she had a brief viral illness.

60 In the light of these authorities, it is clear that the psychological consequences of the appellant’s relationship with the complainant and his attitude in relation to such consequences were relevant matters for the disciplinary committee and the Board to take into account when evaluating the appellant’s conduct and considering what disciplinary orders, if any, should be made. However the disciplinary committee found out very little about those aspects of the couple’s relationship during its investigation, and was absolutely silent as to those subjects in its report to the Board.’

The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT.  Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.

The Medical Practitioners Board had cancelled the doctor’s registration following his conviction for sex offences involving patients.  Years later, he had applied for re-registration, and was knocked back.  He applied to VCAT for review.  It granted the review, deciding that the correct and preferable decision for the Board to have made was to allow him back into practice subject to strict conditions, such as that he not treat women.  The Board appealed that decision to the Court of Appeal, and applied for a stay of VCAT’s order pending determination of the appeal.  More usually, of course, the professional applies for a stay of a decision disentitling him or her to practise pending appeal.  The Board succeeded in its stay application: Medical Practitioners Board of Victoria v SL [2008] VSCA 264.  Their Honours summarised the VCAT decision of Judge Ross’s tribunal, and then said this in granting the stay:

’14 The question that remains to be determined is whether, pending hearing and determination of the appeal, the respondent should be permitted to practise in accordance with the Tribunal’s finding. We were informed from the Bar table by counsel who appeared for the respondent that he has not engaged in any medical work since 2003, but that he now wishes to return to the practice of medicine. It appears that he is presently seeking a position with a group practice and that an interview has been arranged.

15 It goes without saying that an appeal does not of itself operate as a stay. Moreover, the jurisdiction to grant a stay pending an application for leave to appeal will only be exercised in exceptional circumstances. This Court, having already granted leave to appeal, may not be so constrained.

16 But, in any event, the factors that are relevant include the prospects that the appeal will be successful, the balance of convenience, and any prejudice that will flow to either party from granting or refusing the stay. As a general proposition, the respondent should not lightly be denied the ‘fruits’ of his success before the Tribunal. It is clear that the onus rests upon the party seeking the stay.

17 Despite the careful findings of the Tribunal, we have concluded that the Board has discharged that onus. We are influenced to some degree in arriving at that conclusion by the fact that this appeal can be expedited and heard relatively soon. Enquiries with the Registry indicate that the appeal can be listed for hearing very early on in term two next year. We propose to direct that that course be followed.

18 There is nothing to indicate that the respondent is presently suffering undue hardship by being unable to practise medicine. He is currently employed in a book-keeping capacity and appears to be able to make a living. At worst, he will face a stay of some few months, which will delay his return to practise for a relatively short time. Given that he has not been practising for some six years, a delay of a few months longer does not strike us as gravely prejudicial.

19 In addition, it should be borne in mind that this is not a commercial dispute between two private litigants. The paramount consideration must be the protection of the public. To refuse the stay would require a conclusion on our part, albeit a provisional one, that the public welfare will be adequately protected, that being the primary question which must be resolved on the appeal. The public interest will be best served, we have concluded, if the respondent does not return to his practice as a doctor, even under close supervision, until this Court has determined whether he should be permitted to do so. It would serve no one’s interest if the respondent were to treat patients for several months and then find his registration once again cancelled.’

Lovegrove & Lord‘s Kim Lovegrove and barrister Sav Korica have just published a little book called Disciplinary Hearings and Advocacy (Hybrid, 2009). It sells for $39.95. Lovegrove is the Chairman of the Building Practitioners Board, and presides over disciplinary hearings. I suspect that frustration with other decision makers’ decision making (‘there may exist some, particularly those who are not legally trained, who may harbour a misconception about the purpose of disciplinary porceedings in that they may be of the view that their primary mandate is to punish’) and, more particularly, with the attitude adopted by advocates appearing before him (‘Members are often bamboozled about determining whether an advocate is contesting or mitigating’) has driven him to write the book.

It is not intended to be, and it is not, the definitive lawyers’ text in this relatively simple area of law which is beset by contradictions, a general want of foundational jurisprudence, and characterised by inconsistency of disposition of similar offences.  That book remains to be written in Australia, and pity the poor author, who would be forced to sift through the detail of the frequently amended and ever disparate disciplinary schemes around the country.  The book is, in style, in fact somewhat more like an essay than a text, with the author’s personal views liberally sprinkled through the book.  It is only 80 pages long.  The work does not aspire to be a legal text; rather its purpose is a practical guide for decision makers and professionals, most of whom will not be lawyers.  How well the book achieves this aim is something which only laymen will be able to tell, but parts of it will be of interest to lawyers unfamiliar with the jurisdiction too.  The Briginshaw explanation of the application of the civil burden of proof to serious allegations is set out at lenght, along with the various glosses and explanations given to it by Australian courts, such as Neat Holdings Pty Ltd v Karajan (1965) 112 CLR 517.

Its strongest feature is its treatment of a good plea in mitigation.  That is bread and butter for criminal lawyers (though one hears decision makers deplore the standard of plea making often enough).  But it is a foreign world to practitioners of the civil law unfamiliar with the somewhat hybrid world of professional discipline.

’26 In this application, the defendants raise the issue of the plaintiff’s prospects of successfully suing her solicitor for negligence in relation to the mistake he made concerning the time within which he had to apply for an extension of the period of validity of the County Court writ. Accordingly, it is necessary to consider the principles to be applied in relation to this issue. Prior to the Full Court’s decision in Repco Corporation Limited v Scardamaglia,[53] there was a reluctance in this Court to express any concluded view about the relevance of the consideration of alternative causes of action that might be open to a plaintiff who failed to obtain an extension of the limitation period. In Scardamaglia, Smith J[54] said:[55]

“In the present case, if the section does require consideration of the possibility of Mr Scardamaglia’s right to sue his legal representatives, I am not persuaded that that possibility is something that should affect my view that on balance it would otherwise be just and reasonable to exercise the discretion in his favour. While it might be said that on the evidence before the Court the rights against the legal representatives appear to be strong, there is no admission of negligence by the legal representatives and the issues that may arise in any such action have not been investigated or pursued fully in these proceedings. In any event, confining Mr Scardamaglia to an action against the legal representatives would carry with it its own prejudice. He would be able to seek compensation not in respect of his injuries but for his loss of his right to sue Repco. He would find himself having to prove two cases – the original case against Repco and a further case, the case against the legal representatives. The proceeding would, therefore, be more time consuming and more costly. There would also be a real risk, that, if successful, any sum recovered would be less than any sum that he would have recovered in the original proceeding; for any damages awarded would be for the lost chance to recover damages in the proceedings against Repco (Johnson v Perez (1988) 166 CLR 35; Nikolaou v Papasavas, Phillips and Co [1989] HCA 11; (1988) 166 CLR 394).”

27 In Tsiadis [v Patterson [2001] VSCA 138; (2001) 4 VR 114] the Court of Appeal resolved the question, concluding that it was appropriate to determine in an application under s 23A to have regard to the plaintiff’s ability to recover damages from a former solicitor where that solicitor’s negligence had made the application necessary. This, of course, does not mean that in every case where there is the possibility of successfully bringing proceedings against a solicitor, that the discretion contained in s 23A (or in this case s 23K) should be exercised against the plaintiff. As Forrest J said in Gordon v Norwegian Capricorn Line (Australia) Pty Limited:[56]

“It follows that a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms — diminution in the value of the claim as well as any added costs and the complexity of the proceeding against the former solicitor.”

28 Before turning to an analysis of the matters required to be taken into account by s 27L and the competing considerations in the circumstances of this case, it is necessary to say something concerning the strengths of a suggested possible cause of action the plaintiff might have against her solicitors.[57]

A potential claim by the plaintiff against her solicitors

29 Substantial reliance is placed by the defendants upon the fact that the plaintiff has a cause of action against her solicitors in which (they say) negligence has been admitted. The solicitor (Mr [C]) is described by the defendants as “plainly at fault” and having admitted that it was his “ineptitude that caused the plaintiff to be in [her] current position”.[58] In summary, the defendants contend that Mr [C] was negligent when he overlooked the order of Judge Duggan and thereby wrongly believed he had until 4 November 2007 to file the statement of claim and serve the writ. The defendants describe the potential claim against Mr [C] as “extremely strong”.[59] However, closer analysis is required.

…

32 With the benefit of hindsight, it can be seen that the preferable course was, knowing a report would be received shortly, to serve the County Court writ. However, Mr [C] obviously did not have the benefit of hindsight. His decisions fall to be examined as the facts unfolded. If the plaintiff’s present application for an extension of time under s 27K fails, she certainly has an arguable claim in negligence against Mr [C] in relation to the failure to serve the County Court writ on or before 3 October 2007. However, such a case would not be (to use the words of Senior Counsel for the plaintiff) “a lay down misere”. As Megarry J said in John v Rees:[63]

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that by discussion, suffered a change.”

…

34 In this case there is no relevant admission of negligence on the part of Mr [C] or the potential defendants to an action by the plaintiff against her solicitors. That is, there is no admission by Mr [C] that he should have served the writ before he obtained the report of Associate Professor Marshall, or that he negligently took too long to investigate and prosecute the plaintiff’s proceeding. Whilst it might be said that the plaintiff’s prospects in such a case are reasonable, in reality there is insufficient material before me to enable a definitive conclusion as to the plaintiff’s likely prospects of success in such a proceeding. While the existence of a potential claim is relevant, it is not, in my view, a matter to be accorded great weight in the performance of the synthesis required by s 27K. Further, there are two additional reasons why only limited weight should be accorded to this matter. They are:

(a) First, any damages recovered from the plaintiff’s solicitors would only be for the loss of the right to sue the current defendants rather than damages for the injuries actually sustained.

(b) Secondly, there are added costs and an added complexity associated with bringing a new claim against the plaintiff’s solicitors, rather than the present proceeding.[64]‘

[53] [1996] 1 VR 7.

[54] With whom Brooking and J.D. Phillips JJ agreed.

[55] At p.15.

[56] [2007] VSC 517 at paragraph [86].

[57] And in particular Mr Cramp.

[58] See paragraph 5(h)(ii) of the second defendant’s outline of submissions dated 17 April 2009 and paragraph 32 of the first defendant’s outline of submissions dated 16 April 2009.

[59] See for example paragraph 32 of the first defendant’s outline of submissions dated 16 April 2009.

[60] See Savcor Pty Ltd v Catholic Protection International APS [2005] VSC 213.

[61] Reasons of Judge Wodak at paragraph [13].

[62] See Savcor, supra and the reasons of Judge Wodak at paragraph [25].

[63] [1970] 1 Ch 345 at 402.

[64] See generally Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517 at paragraph [86].

Few things are as infuriating as doctors who keep you waiting.  The Herald Sun kindly brings us news of this doctor who repeatedly kept his patient waiting for 45 minutes, even after the patient had rung ahead to enquire how the list was looking.  The patient expressed his displeasure and the doctor ‘pushed him against the wall and [the patient] fell to his hands and knees and then … [the doctor] tried three times to drag him towards the door.’ The patient was left the patient in tears. In a review at VCAT of his disciplinary session (Medical Practitioners Board of Victoria v Dr John S [2009] VCAT 419), the doctor denied dragging his patient.  There are three possible explanations for VCAT’s finding that he did do so: 1.  VCAT ascertained the facts wrongly; 2.  the doctor lied; and 3. the doctor forgot this detail about something which happened 19 months ago.

In Ireland, they’ve just started holding medical disciplinary hearings in public.  The first such hearing involved a doctor who suggested his patient engage in a bit of ‘rumpy pumpy’ to help her sleep.  The Fitness for Practice Committee found no professional misconduct.

In the 1960s and 70s, a former Eltham GP sexually abused two boys aged 12 and 14, in the case of one of the boys while he was a doctor. He has had his registration cancelled and told not to reapply for 12 months.  He spent time in jail, but new complaints against him are said to be under investigation.  The Age‘s article is here.  A statement by the Medical Practitioners Board of Victoria is here.