Tribunals not bound by the laws of evidence

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 [2013] VSCA 305 at [32] – [34].

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 [26]; 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 [2011] VSC 191 at [59]; and Medical Practitioners Board of Victoria v Saddik [2010] VCAT 366 at [44].

(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, [2012] 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 [2014] ACTSC 283: Continue reading “Tribunals not bound by the laws of evidence”

The legal system has failed to absorb research into the frailty of human memory

The English High Court’s Justice Leggatt (now a judge of the Court of Appeal) was called upon to decide a claim for £14 million in which the plaintiff relied on a contract said to have been entered into at the Horse & Groom public house in Great Portland Street in London.  (Freshfields’ case note is here). In Blue v Ashley [2017] EWHC 1928.  His Honour reiterated earlier comments he had made to the effect that:

‘While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.’

The modern approach, his Honour essentially said, is to get all the authentic documents and study them carefully and then allow memory only to fill in the gaps.  This is what his Honour said:

Continue reading “The legal system has failed to absorb research into the frailty of human memory”

Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it

Legal Services Commissioner v AL [2016] 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 [44] and [27]: 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 [82] – [92]: 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 [96] – [108]: 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 [76] – [77]: 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.

Continue reading “Yet more on the obligation on Legal Services Commissioners to plead their case properly and stick to it”

VCAT finds practitioner guilty of conduct prejudicing administration of justice

I only learnt in the last few years that Melbourne is one of the world’s great Jewish cities, with a globally significant series of communities of orthodox adherents.  One of those orthodox communities has delivered up an interesting case.  In Victorian Legal Services Commissioner v AL [2016] VCAT 439, VCAT’s Acting President recently found a well known Melbourne solicitor guilty of two counts of professional misconduct, constituted by breaches of each limb of r. 30.1.2 of the solicitors’ professional conduct rules.

The rule prohibited conduct calculated to, or likely to a material degree to be, prejudicial to the administration of justice, or to diminish public confidence in the administration of justice, or adversely to prejudice a practitioner’s ability to practise according to these rules.

The practitioner’s disciplinary offence was first to state privately to his client’s father his disappointment after an orthodox Jew sitting watching someone else’s case in court had gone out of his way from the well of the court to assist police in the middle of a bail hearing in a criminal prosecution of the practitioner’s client. His second offence was committed when the man, whom I will refer to as the complainant since he lodged the disciplinary complaint which led to the practitioner’s disciplinary prosecution, rang the practitioner and asked him about comments to similar effect which the man had heard the practitioner had made, taping the call. The practitioner expressed directly to the man similar sentiments, expressly invoking the Jewish principle of ‘mesirah’ by which Jews who cooperated with secular authorities against fellow Jews in times and places where Jews enjoyed imperfect protection were ostracized. Jewish authorities have repeatedly said that the principle has no operation in modern day Australia in relation to criminal matters.

The Age has reported, in an article prominently featuring the practitioner, that victims of Jewish abusers have been pressured not to cooperate with police. It reported the Legal Services Commissioner as saying that ‘there was a general principle that made it impermissible for a lawyer to tell a witness they could not inform police about a matter because of a religious or community rule.’ I do not mean to criticise the Commissioner in this regard, because The Age sought his comments prior to the Commissioner’s receipt of the complaint, and the Commissioner was presumably simply responding to a general question about lawyers’ obligations towards witnesses in their cases. But what VCAT’s decision demonstrates is that the practitioner’s comments occurred after the conduct in question which the practitioner believed to have involved false statements based on misinformation, and were directed to a person who was not a witness and who, as far as the practitioner was aware, was simply someone who stood up in the well of the court and interfered in his client’s case. Given that, as far as the practitioner is said to have known, the man who stood up in court had no further role to play in the case or in his client’s drama more generally, it is hard to see how the practitioner could be said to have intended to pressure the man as a victim of a Jewish abuser not to cooperate further with the police in the future in bringing the abusers to justice, as seems to have been the implication. Continue reading “VCAT finds practitioner guilty of conduct prejudicing administration of justice”

Admissibility of material relevant to penalty at the liability stage

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 [2012] QCA 300, a unanimous decision: Continue reading “Admissibility of material relevant to penalty at the liability stage”

Summary judgment in a disciplinary prosecution?

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 [2015] 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?”

Legal Services Commissioner seeks to overturn privilege against penalties

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 [2015] 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”

More on the constraints on the use of information obtained under statutory powers

In Flori v Commissioner of Police [2014] 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 [27], is set out in full below. Continue reading “More on the constraints on the use of information obtained under statutory powers”

Jury verdict overturned by VSCA because of insinuation in cross-examination without adequate factual foundation

In Green v Emergency Services Telecommunications Authority [2014] VSCA 207, the Victorian Court of Appeal today overturned a jury’s verdict following a nine-day trial. There had been a miscarriage of justice occasioned by the manner in which the plaintiff was cross-examined by the defendant’s trial counsel.  He had made an allegation of recent invention involving a conspiracy between her and her solicitors to concoct a story. Continue reading “Jury verdict overturned by VSCA because of insinuation in cross-examination without adequate factual foundation”

R v Milat: A Case Study in Cross-Examination

British backpacker Paul Onions got away from Ivan Milat on 25 January 1990, after Milat pulled a gun on him after giving him a lift.  He ran off, zigzagging to avoid being shot to death and managed to hail a passing motorist as Milat’s shot missed him.  The police did not do anything much in response to his report and, tragically, Mr Milat was more successful with at least seven others who were in 1992 found murdered in the Belangolo State Forest.  One had been decapitated. Continue reading “R v Milat: A Case Study in Cross-Examination”

To accept a reprimand or not to accept a reprimand?

Update, 17 October 2014: K-R v Council of the Law Society of New South Wales [2014] NSWCATOD 115 provides an example of poor decision making when a disciplinary investigation was resolved by a reprimand imposed by the NSW Law Society instead of by disciplinary prosecution in NCAT (NSW’s VCAT).  The Council got the law wrong, and got another thing wrong too.  Even if the law was as the Council wrongly believed, the practitioner’s construction of the law was not so unreasonable as to justify a finding that her conduct, engaged in in the belief that her construction was right, amounted even to unsatisfactory professional conduct.  It would just have been a mistake which did not warrant discipline and the Council should not have arrived at the state of satisfaction which triggers the power to reprimand.  That is, the Council should not have been satisfied in the circumstances that there is a reasonable likelihood that the practitioner would be found by the disciplinary tribunal to have engaged in unsatisfactory professional conduct if prosecuted.  Sometimes — not always — I get the impression from Australian Bureaux de Spanque that most breaches of the Act or conduct rules automatically equate to unsatisfactory professional conduct.  Of course that is not so.  Sometimes I get the impression that there is a regulatory position that breach of the trust accounting rules automatically equates to professional misconduct.  This decision demonstrates that that is not so.

In the last paragraph of the reasons, members Chesterman, Riordan and Hayes observed that the whole idea of disciplining practitioners based on satisfaction of a reasonable likelihood that a prosecution would be successful was ‘unsatisfactory’:

‘In conclusion, we wish to draw attention to an aspect of section 540 that we regard as unsatisfactory. In its present form, it can produce the outcome that a legal practitioner is reprimanded (or is subjected to one or more of the other lesser penalties listed in subsection (2)) even though it has not been affirmatively shown that he or she engaged in unsatisfactory professional conduct. The lower threshold set out in subsection (1) – that of a ‘reasonable likelihood’ of such a finding – applies both when the Legal Services Commissioner or a Council chooses to invoke the section and when administrative review of an adverse decision is sought by the legal practitioner concerned. By contrast, if the matter proceeds by way of a disciplinary application to NCAT (which is now the relevant tribunal), an order by way of penalty will only be made if unsatisfactory professional conduct is proved to NCAT’s satisfaction.’

There are two differences between the NSW provision analysed by this decision and the current Victorian provision.  First, the practitioner’s consent is not a condition of the Bureau de Spanque up North imposing a reprimand.  Secondly, there is a specific statutory right to obtain review of decisions such as this.

Under the Legal Profession Uniform Law to come into force in Victoria and NSW next year, the Bureaux de Spanque will have to make a determination that there has been unsatisfactory professional conduct — none of this ‘satisfied that there is a reasonable likelihood’ nonsense.  It is to be hoped that skilled legal decision makers will be assigned to this quasi judicial task. Once such a determination has been made, however, the Bureaux will have the power to award fines of up to $25,000 or impose other sanctions chosen from a statutory smorgasbord.  Given that fines of $25,000 or more are rare in Victoria and NSW alike, this essentially means, in practical terms, that for most lesser disciplinary complaints, ultimate decision making power is being transferred from public tribunals to employed decision makers operating in private.  I should not be taken to be suggesting that that is necessarily a bad thing.  But it is something which should be discussed.

Of course, many times it may not be possible for a decision maker in the new regime safely to make a determination on the papers without admissions from the respondent.  In those cases, it may well be that the Bureaux would have no choice but to lodge a prosecution or take no further action, even if the practitioner were prepared to consent to the making of a reprimand.

Original post, 17 June 2014: Following a disciplinary investigation, Victoria’s Legal Services Commissioner must form an opinion as to the likelihood of VCAT finding the lawyer guilty of conduct warranting discipline.  If he is satisfied that there is a reasonable likelihood of VCAT finding the lawyer guilty of something, his options depend on what that something is.  If it’s professional misconduct, then he must prosecute.  If it’s unsatisfactory professional conduct, he can take no further action, or he can prosecute.  And then there’s the in between bit: in the case of suspected unsatisfactory professional conduct he can also, with the lawyer’s consentreprimand the lawyer, caution the lawyer, and require the lawyer to pay compensation to the complainant.  See Legal Profession Act 2004, s. 4.4.13.
Continue reading “To accept a reprimand or not to accept a reprimand?”

Self-represented solicitor guilty of misconduct for breaching a rule expressed to regulate conduct when acting for a client

A Western Australian disciplinary case, Legal Profession Complaints Committee v CSA [2014] WASAT 57 is interesting in a number of ways. A criminal lawyer was the manager of a strata corporation.  She owned two units and the complainant the third. The complainant affixed an airconditioner to a wall which impeded on a common area.  She sought legal advice.  Her lawyers wrote a letter of demand to the complainant and charged a few thousand dollars.  The complainant did not fix the problem within the 14 days demanded, so the lawyer sued in the Magistrates’ Court.  The case was settled on the basis that the airconditioner would be relocated and the lawyer withdrew the proceeding without seeking costs.  When the complainant sold the third unit, the lawyer demanded that the complainant pay her the few thousand dollars her lawyers had charged her for the advice and the letter of demand.  She did so by a letter of demand drafted for her by another lawyer, though the involvement of this second lawyer only emerged at the disciplinary hearing. When the complainant did not pay up, she sued for them in her personal capacity.  The suit was found to have no legal foundation, but the lawyer said that she mistakenly thought that it did have a legal foundation, and that civil proceedings were not her thing. The case says:

1.  The suit was an abuse of process because there was no legal foundation for suing for the recovery of ‘pre-litigation’ legal costs.

2.  The lawyer’s conduct in threatening to bring and then bringing a suit which was an abuse of process was common law misconduct but was also a breach of a rule which prohibited lawyers from claiming on behalf of a client costs in a letter of demand for recovery of a debt because she was acting for herself in writing the letter (even though no legal letterhead or reference to her status as a lawyer was involved).

3.  There is no defence of honest and reasonable mistake in professional discipline.

4.  It is inappropriate for a disciplinary tribunal to make what the prosecutors described as ‘an incidental finding of dishonesty’ in relation to statements made during the investigation in respect of which no charge had been laid in the disciplinary proceeding.  Any such allegation ought to be the subject of a separate process (though the Tribunal then went ahead and found that the allegation was not made out on the Briginshaw standard anyway). Continue reading “Self-represented solicitor guilty of misconduct for breaching a rule expressed to regulate conduct when acting for a client”

Clyne v NSW Bar Association: the leading case on unfounded allegations

Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 is a unanimous decision of the Dixon Court confirming the striking off of a Sydney barrister, Peter Clyne, for making unfounded and serious allegations on behalf of a husband against the wife’s solicitor in matrimonial litigation for the admitted purpose of getting the wife’s solicitor out of the case.  Those allegations were in fact made in a private prosecution by the husband of the wife’s solicitor for maintenance. Reading the decision, one might think that striking off the rolls was a relatively harsh penalty by today’s standards for the conduct recorded, especially since his client succeeded at committal in having the wife’s solicitor presented for trial.  And also if one believes Mr Clyne’s autobiography where he asserted:

‘Particulars given by the New South Wales Bar Association made it quite clear that it was not part of the charge to say that my advice to prosecute was wrong, or improper.  Indeed, as I have mentioned before, the advice to prosecute Mann was given in writing, by the eminent and respected Sydney QC, Mr Newton, who later became (and still is) a judge of the New South Wales District Court; and no one has ever criticized Mr Newton for his advice.’

But Mr Clyne had done it before and been sternly warned (see CLR 202) and was unrepentant to the moment he was struck off. Further, he was absolutely one out of the box (he will be the subject of a further blog post) and was no doubt regarded as an excrescence on the legal system to be excised at almost any cost.  He went on to irritate the authorities as a professional tax evader and unashamed advocate of tax evasion, writing many books on the subject and others (e.g. Adventures in Tax Avoidance, How Not to Pay Any Taxes, Guilty But Insane) while living a decadent lifestyle which hopped, first class, between hotels in Sydney and his native Vienna.  Like George Herscu, one of the villains in White Industries v Flower & Hart, Clyne spent time in jail, and only avoided spending more time by fleeing America without a passport while on appeal bail.  He seems to have been intelligent and to have had enough charm to be married to a Welsh entomologist who also wrote many rather different books (e.g. Silkworms, All About Ants, and Plants of Prey).  But his autobiography (Outlaw Among Lawyers; the Peter Clyne Story, Cassell Australia, 1981) reveals a thoroughly dishonest if colourful character with very little if any regard for the law. Continue reading “Clyne v NSW Bar Association: the leading case on unfounded allegations”

What is a signature?

I have spent too much of the last couple of years considering what it is for a person to sign a document, as a result of a disciplinary prosecution of my solicitor client for forgery after he wrote his wife’s name on a guarantee pursuant to a written authority and then signed his name as witness to her signing. The case was decided on an unrelated technical point.  But here’s what I’ve learnt about signatures, in a nutshell (some of it from you, dear readers):

  • A person signs when they affix a mark indicating their assent to the document, either personally or by an agent: there is no obligation that people able to do so sign their usual signature or write their name;
  • The agent may write the principal’s name or write their own (emulating the principal’s usual signature would presumably be problematical);
  • An agent who affixes the principal’s signature may personally attest that signature;
  • An agent who writes the principal’s name without the conventional ‘p.p [the principal]’ or ‘per [the principal]’ and without otherwise indicating that the document was signed through an agent generates an efficacious signature;
  • Though there are Australian and UK cases in which the Court has not criticised witnesses who attest signatures affixed by agents despite the document bearing no indication of agency, there is also Australian authority that such attestation does not satisfy a statutory requirement for enforceability of a document that it be attested as having been signed ‘in the presence of the signatory’.

Continue reading “What is a signature?”

Suburban solicitor tenders video of himself asking employee for sex 78 times in his own sexual harrassment case

A solicitor somewhere in Melbourne’s suburbs failed in his defence of sexual harrassment claims and was ordered by VCAT’s President, Justice Garde, to pay his victim compensation of $100,000: GLS v PLP [2013] VCAT 221.  The solicitor described the complainant as a fantasist when she said that he asked her for sex in a most unwelcome manner, except to the extent that her allegations were corroborated by a video he himself had surreptitiously made during which he asked her most vulgarly for sex 78 times in about an hour and which he tendered to prove that she was coming onto him. Weird. But that was all just to grab your attention.

Now for the saucy bit: the President rehearsed the authorities on the Briginshaw application of the civil standard of proof, reproduced in this post.  But it is also interesting in that the President expressly invoked the VCAT Act power to apply rules of evidence, and did so because serious allegations were being made.  In a case about a solicitor, and for the protection of the solicitor.  I don’t think I have seen that power expressly invoked in a VCAT decision before, except occasionally to reject the tender of particularly unreliable hearsay. Here’s hoping that it might be the start of the development of VCAT’s own de facto law of evidence, because a forum without any law of evidence is a strange beast, and a forum which has an unspoken de facto evidence regime undermines equality of access to it, creating an advantage in favour of those in the know, who will tend to be experienced users and lawyers. Continue reading “Suburban solicitor tenders video of himself asking employee for sex 78 times in his own sexual harrassment case”

VCAT’s President, Justice Garde, lays out the law of the rule in Briginshaw v Briginshaw

As I mention in this post, Justice Garde, VCAT’s new President, set out the law relating to the application in cases involving allegations of serious wrongdoing of the civil standard of proof helpfully and authoritatively in GLS v PLP [2012] VCAT 221:

‘The standard of proof

  1. This case concerns serious allegations levelled against Mr PLP, the principal of a suburban law firm, and a practising solicitor. Proof of the issues in this proceeding is at the civil standard – the balance of probabilities. Mr Selimi of counsel for Mr PLP submitted that the matter is a grave matter and has the potential to cause serious consequences to Mr PLP’s professional and personal reputation. He also contends, and counsel for Ms GLS accepts, that I should apply the principles outlined by Dixon J (as he then was) in Briginshaw v Briginshaw.[15]
  2. The key passage of Briginshaw is often quoted:[16]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. Continue reading “VCAT’s President, Justice Garde, lays out the law of the rule in Briginshaw v Briginshaw”

Pimply youth’s fraudster Father Christmas Avondale Heights outrage

The Victorian Court of Appeal has reversed the decision of a County Court Judge awarding $80,000 to a Father Christmas who was kicked in the knee by a pimply youth on his way from his throne to his dressing room. Judge Smith’s decision is here, the Court of Appeal’s here (Bainbridge v James [2013] VSCA 12.  Vincent Verduci & Co’s great first instance triumph was not to endure; the Chief Justice and Acting Justice of Appeal Kyrou agreed with Justice of Appeal Harper’s restrained judgment which was that the first instance judgment was tosh and that the risk of violent assaults on Father Christmases at shopping centres is fanciful and far-fetched so as not to give rise to a duty of care to prevent it, accepting the submissions of the great Jeremy Ruskin QC on this important legal controversy.  Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 has its limits.

The twice bankrupt one-time fraudster who had been reduced to giving out trinkets supplied by the shopping centre to snotty children the better to encourage thoughtless consumerism had sued not the pimply youth, you see, but they whom he claimed to be his employers (they said they were his agents) and the owner of Milleara Shopping Centre in Avondale Heights.  His case centred on the absence of a security guard on this occasion, in contradistinction to most other occasions when a security escort had been provided for the journey from the throne to the dunnies where Father Christmas civvied up en route to the car before hearing home to the missus. Though he had never himself apprehended the faintest threat to his person qua Father Christmas, his employer and the Centre should have, he contended.  But for the absence of a security guard on this occasion, he contended, the youth would not have kicked him in the knee. Father Christmas pointed to the defendants’ telling ‘unexplained’ failures to call evidence ‘about the extent or realilty of any risk’ of pimply youths kicking Father Christmases in the knee on the way back to their dressing rooms, and invoked the rule in Jones v Dunkel.

Harper JA said: Continue reading “Pimply youth’s fraudster Father Christmas Avondale Heights outrage”

Disciplinary prosecutors must specifically plead dishonesty

In Council of the Law Society of NSW v WDC [2011] NSWADT 83, NSW’s Bureau de Spank rejected a submission of the Law Society to the effect that it should make findings of misappropriation (a necessary element of which is dishonesty) which the Law Society said it had impliedly alleged in the charge.  ‘Nonsense!’ said the Bureau:

‘As the above outline indicates, the Grounds stated in the Application alleged misappropriation in the context of only three matters: Daude, Gibki and Laczny. But Mr Stitt argued that a claim of misappropriation was made implicitly in a number of other matters in which the Solicitor withdrew funds to which he was not entitled from a trust account: for example, Ida Potier, Davidson, Crowe, Maguda, Milkow, Obolska and Pugliese.

We agree, however, with a submission by Mr Lynch that the only matters in which we may properly make a finding of misappropriation are those in which the Law Society has alleged it. This follows, in our opinion, from the decision of the High Court in Walsh v Law Society of New South Wales (1999) 198 CLR 73: see in particular the judgment of McHugh, Kirby and Callinan JJ at 94-95.’

Jones v Dunkel inferences in disciplinary hearings

In Council of the Law Society of NSW v Clapin [2011] NSWADT 83, NSW’s Bureau de Spank rejected a submission based on Jones v Dunkel which the Law Society said should be drawn against the solicitor, who did not give evidence:

In dealing in this way with the question whether the Solicitor violated the statutory requirements with full awareness of their contents or because he was ignorant of them, we are rejecting a submission put by Mr Stitt. He argued that because the Solicitor chose not to give evidence in these proceedings we should infer that he was fully aware of the nature of these requirements. In disciplinary proceedings such as these, however, we should not make findings of seriously improper conduct against the respondent unless they are affirmatively established by cogent evidence. We decline to draw the inference urged upon us by Mr Stitt.