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.

England recognises new exception to without prejudice privilege

Herbert Smith’s e-bulletin commences:

‘Supreme Court confirms new exception to the ‘without prejudice’ rule

In its judgment handed down on 27 October 2010 in Oceanbulk Trading & Shipping SA v TMT Asia [2010] UKSC 44, the Supreme Court added a new exception to the ‘without prejudice’ rule. It held that facts communicated between parties in the course of ‘without prejudice’ negotiations should be admissible, if they would otherwise be admissible as part of the ‘factual matrix’ to aid contractual construction.’

The contract the construction of which was contemplated was a settlement agreement. The Supreme Court is now the foremost Court in England, following the demise of the House of Lords.

Evidence of offers at mediation admitted into evidence

Simply Irresistable Pty Ltd v Couper [2010] VSC 505 is a ruling in a solicitor’s negligence case decided under the Evidence Act, 2008 about an objection to the adduction of evidence as to offers made in a previous proceeding. A company is suing its former lawyers for negligence in the Supreme Court at the moment.  They are defending on bases that include that the company caused its own losses, and alternatively failed to mitigate them.  A woman gave evidence for the company.  An inference arising from the evidence is that the company’s former lawyers were the sole cause of the loss of an opportunity to exercise an option pursuant to which they could have acquired for about $200,000 an apartment then worth $600,000.  The company says the lawyers negligently failed to advise her to exercise the option, so that she lost about $400,000, plus additional amounts representing the increase in value in the property since then.

The woman had previously sued her solicitor before the defendants commenced to act for her, as well as the person from whom they could have purchased had they exercised the option (Maher v Millennium Markets [2004] VSC 174).  In that earlier proceeding, there was a mediation.  According to the solicitor defendants in the present matter, the defendants in the earlier proceeding offered to settle on the basis that the woman could purchase the apartment for $250,000.  Their counsel intimated a desire to cross-examine the woman in order to establish that fact.  The woman’s counsel objected on the basis that the offer was made at a Court-ordered mediation and was without prejudice. Continue reading “Evidence of offers at mediation admitted into evidence”

New Zealand’s Briginshaw

Z v Dental Complaints Assessment Commission [2008] NZSC 55 is the subject of this post, as well as of this one and this one.  Set out in this post is the entirety of the three sets of reasons’ discussion of the appropriate standard of proof in disciplinary prosecutions, starting with those of the plurality (Blanchard, Tipping and McGrath JJ) reaffirming the status quo, which is expressed in Australia in the decision of Chief Justice Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361ff, followed by the concurring decision of Anderson J, and the passionate dissent of Chief Justice Elias, who considered that the criminal standard of proof should be applied.  Part only of the relevant part of the Chief Justice’s dissent — her summary — was reproduced in my earlier post. Continue reading “New Zealand’s Briginshaw”

Chief Justice Elias’s argument for criminal standard in disciplinary prosecutions

In Z v Dental Complaints Assessment Committee [2008] NZSC 55, which I wr0te about in my last post, the Chief Justice of New Zealand, Dame Sian Elias, argued in a powerful dissent that the standard of proof required in disciplinary proceedings should be the criminal standard, as it is in England.  This is her argument, as summarised by her Honour:

‘[47] … I think the time has come to say simply that the criminal standard of proof applies.  I summarise the reasons why I am of that view, which have already been foreshadowed.

[48]    First, making allowances for the dress of inherent probabilities under which guise much of the discussion has been conducted, the preponderance of authority favours the criminal standard, at least where the charges are serious or entail conduct which is criminal.  That is the effect of the decisions of the Privy Council in [Campbell v Hamlet [2005] 3 All ER 1116 (PC), Lanford v General Medical Council [1993] 1 AC 13, and McAllister v General Medical Council [1993] All ER 982 and Sadler v General Medical Council [2003] 1 WLR 2259 (PC)].  It is also consistent with the decisions in [Bhandari v Advocates Committee [1956] 1 WLR 1442 (PC)] and Re a Medical Practitioner [[1959] NZLR 784].  In both cases, the difference between the criminal standard and the standard required by the context was thought to be a difference “of little importance”.  In the present case the charges of indecent touching clearly meet the level of seriousness envisaged by cases such as McAllister and Sadler.  I would myself however draw no distinction between charges laid under s 54 of the Dental Act according to whether they are or are not in substance criminal or properly classified as “serious misconduct”, on the basis that there should be a single standard of proof under the section.  In this, I would apply the approach adopted by the Privy Council in Campbell v Hamlet and Lanford. Continue reading “Chief Justice Elias’s argument for criminal standard in disciplinary prosecutions”

Z v Dental Complaints Assessment Committee

Z v Dental Complaints Assessment Committee [2008] NZSC 55 is an important case which considers in depth just how quasi-criminal professional discipline proceedings should be.  It is a decision of New Zealand’s Supreme Court, their equivalent of our High Court, now 6 years old.  It considers the disciplinary prosecution of a dentist, acquitted of sexually assaulting sedated patients, against whom disciplinary proceedings were brought in respect of the same conduct as was the subject of the criminal charges.  That the rule against double jeopardy (i.e. the doctrine of autrefois acquit) had no operation was accepted by the dentist.  But he argued that the disciplinary proceedings were an abuse of process.  Four of the five judges agreed with him in relation to one only of the particulars of professional misconduct, while one judge said even that should be allowed to go ahead.  One of the four judges, Chief Justice Elias, held that all of the particulars of misconduct were an abuse of process.  The second issue was what standard of proof these disciplinary charges had to be established to.  All but the Chief Justice held that the appropriate standard was the civil standard informed by what we would call the Briginshaw principles.  The Chief Justice, however, argued persuasively in favour of the imposition of the criminal standard in serious professional disciplinary proceedings. Continue reading “Z v Dental Complaints Assessment Committee”

Evidence paper, part 4 (hearsay basics)

I cannot say that readers have been vocally demanding part 4 of my evidence paper in the period since part 3 appeared on 7 April 2010.  Nevertheless, in case anyone remains interested, here it is, with the balance to follow with a little more regularity.  I have created a category specific to this series of posts, being the serialisation of my evidence paper: click on it in the index page (or in the list of categories in the side bar of this page) to be taken to all of the posts comprising the series. Continue reading “Evidence paper, part 4 (hearsay basics)”

Evidence paper, part 5 (reviving memory)

This is part 5 of the serialisation of my evidence paper.  The previous posts are here.

* * *

‘One reason why the solicitor might not be able to give evidence in the orthodox manner is that he could no longer remember the conversation which might have been a decade earlier.  In theory, under the common law, he could not give evidence of it, and the file note would be hearsay if used to prove that what it recorded having been said was in fact said: it would be analogous with the note of the DVD’s serial number in the third example of hearsay in the notes to s. 59.

In practice, a blind eye has been turned to witnesses giving evidence of things they can no longer remember, by reference to their contemporaneous notes and papers, either before court or in the witness box, and the Evidence Act, 2008 dispenses with the pretence: sections 32 and 34 are headed ‘Attempts to revive memory …’, in contrast to the old language of ‘refreshment’.  So the solicitor could give the evidence from the witness box, or in his affidavit, after having attempted to revive his memory by reading the file note. The solicitor could in fact, with the court’s leave, read out the contents of the file note, and if necessary provide interwoven testimonial explanation: s. 32(3).  In either case the client could call for its production: ss. 32(3) and 34(1), even if privileged,[1] without fear that the solicitor could compel its tender as a result: s. 35.


[1] Grundy v Lewis [1998] FCA 1537; Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26; see also my blog here.

Anonymous tip-offs and litigation privilege

The Supreme Court of New Zealand, their equivalent of our High Court, handed down a decision on the litigation limb of legal professional privilege on 12 August 2010.  Chief Justice Elias, with whom the rest of the Court agreed, held that:

  • privilege could attach to an anonymous provision of information to a litigant (who happened to be a barrister) in relation to litigation, and the intention of the anonymous tipper-off-er is not determinative of the dominant purpose test;
  • privilege could attach in the right circumstances to the identity of a person who makes a privileged communication, though often that person’s identity will not be privileged (as to the Australian position, see this post).

The decision is Jeffries v The Privacy Commissioner [2010] NZSC 99. It was decided under s. 56 of New Zealand’s Evidence Act, 2006.  That provision is sufficiently relevantly different from Victoria’s Evidence Act, 2008′s s. 119 that the unsolicited communication decision is of doubtful application, but the law stated in the decision is said to be the common law, and so still relevant in Victoria where privilege is relevant to the adduction of evidence in places like VCAT which are not covered by the Act, and outside of Court proceedings, for example pursuant to notices from the Legal Services Commissioner.  The common law authorities relied on by the Chief Justice were Bankim Thanki (ed) The Law of Privilege (Oxford University Press, Oxford, 2006) at [3.69] and Re Thomas Holloway (1887) 12 PD 167 (CA). Continue reading “Anonymous tip-offs and litigation privilege”

New cases

Legal Services Commissioner v Dempsey [2010] QCA 197 is an unsuccessful appeal from a disciplinary prosecution in which findings of dishonesty were made.

Dye v Fisher Cartwright Berriman Pty Ltd [2010] NSWSC 895 is a case in which an application for a costs assessment (NSW version of taxation) outside the allotted 12 month period succeeded.

Young v Masselos & Co [2010] NSWDC 169 is one of those cases where a solicitor negligently let a limitation period go by and damages had to be assessed based on the plaintiff’s prospects of winning the case foregone.

Council of the Law Society of New South Wales v Harrison [2010] NSWADT 201 is a decision about the Law Society’s successful application to amend a charge against the respondent solicitor.  It reviews a lot of NSW law about the requirements for pleading disciplinary charges, and considers the application of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 to disciplinary hearings.


‘The truth sometimes leaks out from an affidavit’

I turned up to run a trial recently in which orders had been made for witness statements by consent, and witness statements had been filed and served.  The trial judge simply advised he would not stand for written evidence regardless of what some other judge had ordered, and required the witnesses to give their evidence orally.  Luckily the witness statement was actually my client’s evidence, not something dreamt up for him by a lawyer, and he was able to give oral evidence successfully.

There are those who rail against affidavits, or at least their over-use.  I can understand why the judges do it. My understanding of a matter before and after a conference with my client — something I pursue avidly — is a very different thing.  The railings are well summed up by Justice Pembroke who had unusual cause to rail.  At his Honour’s welcome in April, he was described like this:

‘Your Honour was an economical barrister in the best sense of the term. Your Honour’s arguments were always well structured, concise and dealt only with the points that were worth arguing.’

This judge was forced to read a 6,657 paragraph affidavit which he described as ‘gallimaufry’.  (There seems to be a lot of confused jumbles passing through the NSW Supreme Court this year: of the seven decisions published on Austlii in which the word ‘gallimaufry’ is found, three post-date mid-April and emanate from that Court. An unrepresented litigant seems to have reintroduced the word into the judicial vocabulary by a submission recorded by Justice McCallum: ‘Mr Rahman contends, among other things, that the orders previously made by me are evidence of my mind and intellect “in a state of gallimaufry.”‘)

His Honour ordered that evidence be given orally, repeating the quip attributed to Lord Buckmaster that ‘the truth sometimes leaks out of an affidavit – like water from the bottom of a well’.  In full, his Honour’s comments were: Continue reading “‘The truth sometimes leaks out from an affidavit’”

Prosecutors’ duties in professional discipline cases

There is an interesting article by Ian Wheatley at (2008) 16 Journal of Law and Medicine 193.  Titled ‘The Criminalisation of Professional Misconduct Under the Health Professions Registration Act 2005 (Vic): How is a Fine of $50,000 Not Punitive?’. It compares the rights of alleged criminals and the maximum sentences in criminal law, with the rights of doctors alleged in disciplinary proceedings to have committed disciplinary wrongs of a similar degree of seriousness, and pours some much-needed acid on the hymn sung by so many Bureaux de Spank that the proceedings are ‘purely protective of the public’ and involve no element of punishment.  But what protections actually exist for respondents in professional disciplinary proceedings?  It is the purpose of this post to examine three of them.

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).’ Continue reading “Prosecutors’ duties in professional discipline cases”

A new Australian legal ethics blog

A warm welcome to the blogosphere for the Queensland Law Society’s Ethics Blog, which is in its first posts, but attracts an impressive callibre of comments.  The blog has a post about a recent, rare, decision about those rules about what to do in litigation if you discover your client is lying, or you find that you have inadvertently misled the court: Perpetual Trustee v Cowley [2010] QSC 65.  The solicitor got it wrong, and copped a personal costs order.

Another case on privilege and in-house counsel

I never manage to keep up with all the cases about whether in-house counsel’s communications with others in their company may attract legal professional privilege, and if so in what circumstances. I do know that you would want to take great care in preparing affidavits in support of such a claim. The latest decision is in Banksia Mortgages Ltd v Croker [2010] NSWSC 535, and Sparke Helmore have provided a handy little note, with links to some other handy little notes they have written previously about similar cases.

The ‘it just popped out’ defence to implied waiver

In Tulloch (deceased) v Braybon [2010] NSWSC 640, a witness was being cross-examined.  He answered a question responsively.  Then, he added some unresponsive material, and it was argued that this little unexpected and unresponsive addendum meant that it had become unfair to maintain client legal privilege over some associated subject matter.

Justice Brereton held that the conduct which gave rise to a prima facie implied waiver of the privilege had occurred in circumstances where the Court had been unable to comply with its obligation under s. 132 of the Evidence Act, 1995. Instead of saying that the cat was now out of the bag, and it had become unfair to maintain the privilege over the associated matter, the Court cured the unfairness by striking from the record the little addendum, thereby putting the cat back in the bag.  The ‘it just popped out’ defence could be quite useful in a string of situations, where the Court has an obligation under s. 132 to warn witnesses of their rights (‘If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself [that they] aware of the effect of that provision.’)  What Justice Brereton said was: Continue reading “The ‘it just popped out’ defence to implied waiver”

Penalties privilege and the corporate interrogee

Graymarshall Pty Ltd v Department of Environment, Climate Change & Water [2010] NSWLEC 54 is a decision of NSW’s Land and Environment Court about the application of the privilege against penalties (related to, but separate from, the privilege against self-incrimination). A regulator issued a notice compelling the production of information to a company. The statute provided that the privilege against self-incrimination was not a good answer to refusing to comply with the notice. It also said that there was a presumption that a contravention of the Act by the company was a contravention by the directors.  There are similarities between this legislative scheme and the Legal Profession Act, 2004‘s scheme for the investigation by the Legal Services Commissioner of incorporated practitioners.  Justice Pepper said: Continue reading “Penalties privilege and the corporate interrogee”

Chief spanks Bureau

Update, 9 August 2010: The Bureau briefed silk and an affidavit from the informant in the child pornography offences made all the difference.  The solicitor again did not turn up, and the Chief disbarred him, ordering him to pay the Board’s costs, though not those of the hearing at which the Bureau failed because of the inadmissibility of its evidence: Legal Services Board v FMcG (No 2) [2010] VSC 332.

Original post: In an amazing segue from my long post about Ziems v The Prothonotary of the Supreme Court of NSW the other day:

There will be a few red faces down at the Bureau de Spank after an unopposed application to have a convict struck off the roll failed: Legal Services Board v FMcG [2010] VSC 266.  The Bureau employee’s affidavits by which it was sought to prove the conviction were inadmissible, and the evidence which would put into context the possession four and a half years ago of child pornography wholly absent.  So ruled the Chief Justice, and she gave the Bureau some advice: Continue reading “Chief spanks Bureau”

Legal professional privilege and disciplinary complaints by non-clients

If you are a solicitor and someone other than your client or former client has lodged a disciplinary complaint against you in Victoria, you should not disclose the subject matter of any communications to which legal professional privilege attaches, or might arguably attach, unless you are instructed to do so by your client or former client. Nor should you give up any document which records such a communication, or disclose any communication which tends to reveal the content of a privileged communication.

That is so even if the Legal Services Commissioner purports to compel the information, for in the case of investigations of non-client complaints, the client’s or former client’s privilege trumps the Commissioner’s powers of compulsion.  If you have already disclosed privileged communications, assuming that the Commissioner had the power to compel you to do so, you should be aware that the disclosed communications may well still be privileged notwithstanding the disclosure to the Commissioner, and so unable to be used against you in a disciplinary prosecution arising from the investigation, and you should probably advise your client or former client.

Until recently, the Commissioner took the view that legal professional privilege was impliedly abrogated in the case of non-client complaints by necessary intendment of the Legal Profession Act, 2004.  Not so.  The reasons why follow below.  These propositions are good law in VCAT’s Legal Practice List, at least.

Remember that it is still the common law which regulates legal professional privilege for the purposes of Legal Services Commissioner investigations and (except to the extent that it adopts the Evidence Act, 2008 in any particular proceding) in VCAT’s Legal Practice List. Continue reading “Legal professional privilege and disciplinary complaints by non-clients”