Kinkhead v Rositani  VMC 009 is a case about crash and bash litigation, a field of endeavour for lawyers which is fertile as a generator of professional misconduct prosecutions. That is because the Victorian Legal Services Commissioner has a fascination with the lawyers who act for plaintiffs who elect to sue the other driver in the courts rather than claim on their insurance. And it is because the big insurers are merciless in their pursuit of the plaintiff lawyers whom they loathe for using the law to interfere with their preferred way of dealing with things, and because they are canny in their lobbying of regulators. RACV will not be amused by this very civilised judgment by Her Honour Meghan Hoare.
The legendary foundation author of Quick on Costs, Roger Quick, has asked me to put this old workmanlike paper on my blog so that he can cite it and link to it in the second edition of that monumental text which he is kindly working on for all our benefits.
What follows does not deal with any developments in the law since 2010, or indeed anything I have learnt since 2010, when I delivered the paper, and so it is out of date, but it might still be of use in some jurisdictions which have not adopted the Legal Profession Uniform Law or by analogy in some cases which are governed by that law. Sorry about the formatting, which is the product of copying and pasting a Word document into WordPress.
This paper does not deal with contingent, or no-win no-fee retainers. In relation to all other matters, the take-home points are these: Continue reading “Costs Disclosure Obligations Under the Legal Profession Act 2004 (Vic)”
Here is Commissioner McMurdo’s Summary and Recommendations from the Final Report, published yesterday, of the Royal Commission into the Management of Police Informants.
Reproduced below is what it says about regulation of the legal profession. There will be more complaints about barristers in the future. Victorian barristers would be well advised to take out the top up insurance available to members of the Victorian Bar which includes a primary layer insurance against defence costs of disciplinary investigations including by the Victorian Legal Services Commissioner. Continue reading “What the Gobbo royal commission recommended about regulation of the legal profession”
In Cahill v Victorian Legal Services Commissioner  VSC 177 (Keogh J);  VSCA 283 (Kyrou JA with whom the other Justices of Appeal agreed), the previous Victorian Legal Services Commissioner closed a disciplinary complaint against a solicitor once related proceedings were commenced. Despite then being functus officio, at the complainant’s request he ‘re-raised’ the complaint once the proceedings ended in what he regarded as inconclusive circumstances. He prosecuted the practitioner, who successfully sought judicial review on the basis that the Commissioner was not entitled to have a second go at the investigation. The Commissioner appealed unsuccessfully to the Court of Appeal. Apparently, that was the end of it.
This case reaffirms the principle that statutory authorities cannot revisit their final decisions because they change their mind or come to appreciate that they are wrong: Minister for Immigration and Multicultural Affairs v Bhardwaj  HCA 11; (2002) 209 CLR 597, 603; Semunigus v Minister for Immigration  FCA 240; (2000) 96 FCR 533, 540 ; Kabourakis v Medical Practitioners Board of Victoria  VSCA 301 (20 December 2016)  (Nettle JA). Continue reading “Re-raising complaints-(not)”
VCAT has published reasons, the first I’ve come across, dealing with the allowance of costs under a costs agreement void for disclosure defaults: Sleath v RGL  VCAT 1998. Though they do not say so, it seems that the principal logic of the determination, under the same principles as the Costs Court is required to have regard to in taxations, was to keep the practitioners to their original written estimate notwithstanding subsequent oral updates. Scary stuff for lawyers if other decision makers reason similarly. Whether the Costs Court will reason similarly is an interesting question. It may be more likely that the Legal Services Commissioner will feel compelled to adopt similar reasoning in those costs disputes which it determines itself rather than referring off to VCAT. Good news for clients and third party payers if so. Continue reading “Holy moly! VCAT finds costs agreement void for ambiguous disclosure then orders solicitors to content themselves with original estimate”
Often enough, judges refer the conduct of lawyers appearing before them (or disclosed by the case they are adjudicating) to the Legal Services Commissioner for investigation. A recent example is Re Manlio (no 2)  VSC 130. Judges also refer the conduct of non-lawyer parties to investigative agencies, e.g. where a tax fraud is suggested by evidence in the case.
Generally, this is not done pursuant to any statutory directive or authority. An exception is s. 202 of the Legal Profession Uniform Law which requires the Costs Court to refer a matter to the Legal Services Commissioner if it considers that the legal costs charged, or any other issue raised in the assessment, may amount to unsatisfactory professional conduct or professional misconduct. (Compare s. 3.4.46 of the Legal Profession Act 2004 which authorised rather than required the Taxing Master to make a referral.)
I have never been particularly clear about the nature of such a referral, or as to the procedures which ought to be followed. Gibson DCJ set out the principles recently, at least as they apply in NSW, in Mohareb v Palmer (No. 4)  NSWDC 127: Continue reading “Judges’ referrals to the ATO, police, Legal Services Commissioners”
Updates, 3 & 4 February 2019: The NSW Court of Appeal dismissed the Law Society’s appeal in Levitt:  NSWCA 247; meanwhile a decision to like effect was made in AB v Law Society of NSW  NSWSC 1975, the subject of this blog post.
Original post: The NSW Supreme Court has quashed decisions of the NSW Law Society to commence disciplinary proceedings against a Sydney solicitor following complaints that the solicitor advanced allegations of negligence in a costs assessment against two barristers without an adequate factual foundation: SAL v Council of the Law Society of NSW  NSWSC 834, a decision of Wilson J. The Court restrained the Council from continuing the disciplinary prosecution which had been stayed pending the application for judicial review. The Council’s reasons were inadequate in not dealing with exculpatory material advanced by the practitioner during the investigation, and in not disclosing the Council’s path of reasoning in relation to why the conduct was professional misconduct rather than unsatisfactory professional conduct or why it was appropriate to prosecute rather than make an in-house determination such as a reprimand and a compensation order.
The implications of this decision are profound, for many a set of reasons at the conclusion of a disciplinary investigation are likely no better than those which were examined in this case, for the simple reason that no one has ever really sought to take the adequacy of these kinds of reasons to task. First, those who are subject to current prosecutions might seek prohibition to stop them in their tracks: if you are involved in a disciplinary prosecution, careful study of this decision is advised. Secondly, with the rise in the quality of reasons at the conclusion of a disciplinary prosecution which one presumes the decision will generate, it may be hoped that better decisions about what to prosecute will be made. Continue reading “Disciplinary prosecution halted because Law Society’s reasons for deciding to prosecute were inadequate”
As with most years, no doubt scores of Victorian lawyers forgot to renew their practising certificates last year. For months, in some cases, this situation was allowed by the regulators to persist without intervention. In Victorian Bar Inc v GSL  VCAT 435 the VCAT, constituted by Judge Bowman, Peter Jopling QC, and Ms F Harrison made clear that the disciplinary Tribunal expected regulators to be proactive to prevent practitioners inadvertently practising uncertificated. Eventually, at least in some cases, the regulators seem to have raised the issue with some practitioners whose sudden apparent cessation of practice at a young age seemed unlikely.
May I respectfully suggest that you go and check, now, whether you actually have a practising certificate for the current financial year.
The question now that the regulators have apparently complied imperfectly with VCAT’s guidance is what ought to happen? Should the practitioners who are close to blameless for practising without a certificate be given a new one with retrospective effect (some were told, for example, by their office manager that the applications had been lodged before the end of the year, and were entitled to assume that their existing practising certificate had ongoing operation pending the Board getting around to dealing with the application, by virtue of a legislative provision to that effect discussed below). Or should the full consequences of the law, including disciplinary investigation, and the refunding to clients of fees for work done while uncertificated (s. 10, LPUL), be brought to bear? The latter approach has the disadvantage of causing lawyers’ professional indemnity insurer to cancel cover during the period of non-certification and the Fidelity Fund may be unavailable to clients of the lawyers in question in relation to conduct engaged in while uncertificated.
What VCAT said was:
The Victorian Legal Services Commissioner has published a report on his new proactive regulation of the profession. It tells how risk profiles of practices are being constructed with the assistance of academics to target trust audits and audits of firms more generally (a new thing for law practices which are not ILPs). It also tells about the exercise of the power to make binding decisions, and alerted me to the fact that the Commissioner now publishes redacted versions of costs determinations at this page. The report says: Continue reading “Legal Services Commissioner’s new decision making powers”
A man was acquitted of criminal charges. The prosecution’s appeal failed. He complained about the police’s lawyers’ conduct to South Australia’s Bureau de Spank, the Legal Practitioner Conduct Commissioner. The Commissioner dismissed the complaint. There was a statutory right of appeal in respect of some but not all categories of decisions at the conclusion of a disciplinary investigation. Dismissals of complaints were not decisions which attracted a right of appeal. Furthermore, the Commissioner argued, the man had a right essentially to prosecute the lawyers privately for misconduct as an ‘aggrieved person’ under s. 82(2)(d), Legal Practitioners Act 1981 (SA).
The Commissioner applied unsuccessfully for the summary dismissal of the judicial review application. The Court found that even though in any ordinary prosecution which would have followed a disciplinary complaint, the parties would be the Commissioner rather than the complainant on the one hand and the lawyer on the other, the complainant’s connection as the object of the alleged misconduct to the subject matter of the complaint was sufficient to give him standing (or, more precisely, to avoid summary termination of his proceedings on the basis of lack of standing). And that was so notwithstanding the statutory scheme for appeals which conspicuously excluded him from its tenderness and notwithstanding any right he may have privately to prosecute the lawyers. The decision is reported as McLeod v Legal Profession Conduct Commissioner  SASC 151.
The situation in Victoria is impacted, in respect of complaints to the Victorian Legal Services Commissioner to which the Legal Profession Uniform Law apply by part 5.6 of chapter 5 (ss. 312 – 314). Decisions of the Victorian Legal Services Commissioner under chapter 5 are ‘final, except as provided by this Part’. The Commissioner is empowered to review his own decision but only at his absolute discretion. And lawyers have a right to appeal to a person who is presumably intended to be VCAT from a disciplinary sanction imposed administratively by the Commissioner or a compensation order imposed by him for $10,000 or more. But those provisions are subject to s. 155 of the Legal Profession Uniform Law Application Act 2014, which preserves the Supreme Court’s jurisdiction to engage in judicial review of the Commissioner’s decisions ‘Despite anything to the contrary in the’ LPUL.
As to the law in relation to the same question in Queensland, see Murphy v Legal Services Commission  QSC 174.
Lawyers have an obligation proactively to assert and protect the privilege enjoyed by their clients and former clients: Re Stanhill Consolidated Ltd  VR 749 at 752. I wrote about it in this post about the Legal Profession Act 2004 (Vic). Lawyers have no implied or, I would suggest, ostensible authority to waive privilege belonging to former clients. The administration of justice will protect the privilege of persons who are unaware of the issue arising and make no assertion of the privilege: Legal Services Board v Garde-Wilson  VCAT 1406 at .
In investigations of complaints by former clients about their former lawyers, no privilege issue arises, either under the Legal Profession Act 2004 or the Legal Profession Uniform Law. The complaint would amount to an implied waiver at common law, and the question is put beyond doubt by statute. Of course, this proposition has its limits and the wholesale use of client secrets against them in a manner disproportionate to the need to divulge them in response to their complaint is a seriously ugly look. The issue of client privilege arises where disciplinary investigators are investigating complaints by non-clients, or in own motion investigations. So, for example, I am advising in relation to a complaint made by the husband about conduct by the wife’s solicitors in a matrimonial proceeding between them.
Where a lawyer purports to waive a former client’s privilege without the client’s instructions, or simply fails to consider the question before handing documents over to the State, the law requires ‘the cat to be put back in the bag’ as far as possible: B v Auckland District Law Society  UKPC 38 at ; British American Tobacco Australia Services Limited v Cowell  VSCA 197 at . So a disciplinary tribunal might well not receive, or put from its mind, evidence of privileged communications obtained by legal regulators in the course of investigations of non-client complaints where the client had not waived privilege, and indeed exactly that occurred in a VCAT case in which I was involved.
The law in relation to privilege and non-client complaints under the Legal Profession Act 2004 was clearly declared by VCAT. The situation faced by lawyers investigated under the LPUL following the complaints of non-clients, and in own motion investigations, in respect of pre-LPUL conduct is not so clear. It is the subject of this post, which suggests that notwithstanding what the Legal Services Commissioner will tell you is a clear abrogation of privilege by the LPUL for all investigations conducted under it, lawyers in such circumstances should think carefully before giving up privileged communications without their former clients’ informed consent. They should, in my submission, at least alert their clients to the possibility that the privilege might still be available to be asserted and give them the opportunity to assert it, if they care to sufficiently.
It will be increasingly important in the future to make clients aware that lawyer-client confidentiality has been largely done away with: all a person curious about the advice being obtained by his adversary need do is make a complaint about the adversary’s lawyer. The old advice that ‘everything you tell me is strictly confidential’ cannot now be given without risking a negligence suit. Every time a solicitor tells a battered woman that whatever she tells him will be just between her and him, and he will seek her permission before using the information publicly or even in the Family Court, will have to add ‘unless your boyfriend or his father or a men’s rights action group make a disciplinary complaint against me, as they are perfectly entitled to do’. So too the QC representing BHP in relation to tax matters: ‘Of course you understand that all this is privileged (unless the judge, who’s getting pretty cranky at me, refers me off for investigation by the Legal Services Commissioner)’. I don’t think I’m being hyperbolic; I’m acting at this very moment for a solicitor whom the Commissioner is compelling to divulge privileged communications connected with the subject of proceedings, in a complaint by the other side to the proceedings, mid-proceedings.
Advocates’ immunity was, until recently, more powerful than many lawyers were aware. Since the 1 July 2015 introduction of the Legal Profession Uniform Law and the High Court’s May 2016 decision in Attwells v Jackson Lallic Lawyers Pty Limited, however, it may be narrower than many realise. And perhaps not everyone is aware that the immunity these days is very likely peculiar to Australia; it is certainly not a feature of English, American, Canadian, Continental, Indian, South African or New Zealand law. Continue reading “Advocates’ immunity: at once more powerful and narrower than most yet understand”
Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.). Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary orders made by the VCAT’s Legal Practice List while appeals or appeal rights are live. The prohibition extends beyond publication on the proposed disciplinary register to disclosure of information to the public more generally.
There is a problem with the Bill though: it focuses its protection of the profession on prohibitions of publications by the Legal Services Board about final orders. The Board shares a website and premises with the office of the Legal Services Commissioner. The CEO of the Board is in fact the Legal Services Commissioner, Michael McGarvie, who is also the applicant in all disciplinary prosecutions of lawyers in Victoria. Yet the CEO, qua Commissioner, is content for his staff to write about cases he is prosecuting, before any orders have been made and while the tribunal is considering what orders to make. On the homepage of the Board + Commissioner’s website, no less.
If parliament is concerned to ensure that the reputation of practitioners is not to be ruined by accounts of current proceedings by one of the parties to them where the aspect of things might change dramatically upon appeal, or even by bad decisions in such proceedings which are to be appealed, it ought to consider adding the Commissioner to the class of person covered by the prohibition, and to make clear that neither the Board nor the Commissioner ought publish details of disciplinary prosecutions while they are before the disciplinary tribunal.
It is not uncommon for appellate courts — the Supreme Court or the Court of Appeal — to reverse decisions unfavourable to lawyers in disciplinary prosecutions of lawyers in VCAT’s Legal Practice List, or to substitute decisions more favourable to lawyers than those of VCAT or the legal regulators. So the no publicity pending appeal proposition actually has some important work to do in the real world. Consider, to name a few, Legal Services Commissioner v McDonald  VSC 237, PLP v McGarvie  VSCA 253, Stirling v Legal Services Commissioner  VSCA 374, Burgess v Legal Services Commissioner  VSCA 142, Brereton v Legal Services Commissioner  VSC 378, Byrne v Marles  VSCA 78, Quinn v Law Institute of Victoria  VSCA 122, Byrne v Law Institute of Victoria  VSC 509. Consider also non-lawyers: Omant v Nursing and Midwifery Board of Australia  VSC 512, and Towie v Medical Practitioners Board of Victoria  VSCA 157 where the Court found that VCAT’s standard orders in disciplinary hearings were contrary to the privilege against penalties. It will be observed that some of those decisions were made by very experienced members of VCAT’s Legal Practice List, and several by its Vice-President, a judge.
Ok, so the High Court is still ruminating after the recent hearing of an appeal from Jackson Lalic Lawyers Pty Ltd v Attwells  NSWCA 335 in which the immunity was again challenged. And advocates’ immunity was probably already abolished in certain respects in Victoria by the Civil Procedure Act 2010, s. 29 of which gives anyone who suffers loss as a result of a lawyer’s breach of the overarching obligations in litigation a right to seek compensation from the court (but not VCAT) in which the case was conducted. But I just noticed something else not mentioned in any of the submissions, and about which I have heard not the faintest whisper of chatter more generally. Chapter 5 of the new uniform legislation in force in Victoria and NSW allows compensation orders to be made for professional negligence and appears to abrogate advocates’ immunity in relation to those kinds of claims. Section 263(1) of the Legal Profession Uniform Law, which has been in operation in Victoria and NSW since 1 July 2015, says:
‘A provision of this Law or any other applicable law that protects a person from any action, liability, claim or demand in connection with any conduct of the person does not affect the application of this Chapter to the person in respect of the conduct.’ Continue reading “Advocates’ immunity abolished in Victoria and NSW”
Updated post: The decision is under appeal: Champion v Rohrt  VSCA 64.
Original post: VCAT has taken a most expansive approach to its jurisdiction to rule on civil disputes involving lawyers in Rohrt v Champion  VCAT 1875. The liquidator of a company served a notice on a solicitor under the Corporations Law, 2001 to deliver up documents in his possession relating to the affairs of the company in liquidation. The solicitor did not respond, so the liquidator lodged a complaint with the Legal Services Commissioner. Presumably, this could have been characterised as a disciplinary complaint, but whether it was so characterised or not, it was certainly characterised as a civil complaint. To the extent that it was characterised as a disciplinary complaint, only the Commissioner would have standing to launch a prosecution in VCAT, so we can disregard that possibility as a possible source of jurisdiction, and VCAT expressly did so (at ).
What is interesting is that the Commissioner, and subsequently VCAT (since VCAT’s jurisdiction was squarely challenged by the solicitor) must have found that the complaint seeking delivery up of the papers demanded by the notice was a dispute between a person and the solicitor arising out of, or in relation to, the provision of legal services by the solicitor to that person. See . Since the Applicant was the liquidator, and not the company in liquidation which was the solicitor’s former client, presumably VCAT must have found that the solicitor provided legal services to the liquidator, or that the person with the dispute arising out of the provision of legal services need not be the person to whom the services were provided. In fact, VCAT found that the solicitor’s argument that VCAT did not have the jurisdiction which the liquidator was seeking to invoke was so untenable as to warrant an order that he pay indemnity costs notwithstanding the presumption in such proceedings that there be no order as to costs at all. Continue reading “VCAT gives expansive interpretation to civil complaint dispute resolution jurisdiction”
In my experience, the Legal Services Commissioner generally assumes that material relevant to penalty is inadmissible at the liability stage. So, for example, the Commissioner applied recently for leave to re-cross-examine a practitioner in a disciplinary hearing, after the close of evidence, in order to adduce evidence relevant to penalty by reference to ‘disciplinary priors’, even though the practitioner did not propose to give further evidence.
I knew there was some case which said that under legislation cognate with the Legal Profession Act 2004 there is, in law, just one hearing, but it is one of those many authorities which, despite this blog, got away from me, never to be found again. But now I have stumbled across it again, and here it is, from Puryer v Legal Services Commissioner  QCA 300, a unanimous decision: Continue reading “Admissibility of material relevant to penalty at the liability stage”
My practice has had me thinking a lot recently about the professional discipline of the mentally ill. The legal profession has caught up with the medical profession by coming up with good policies which make clear that where mental illness can be managed in such a way as to protect clients and others to whom lawyers owe duties, managed practice by the mentally ill should be encouraged and supported. For example, see the Legal Services Board’s policy. The Board’s CEO, the Legal Services Commissioner Michael McGarvie, has been talking about the policy in recent weeks, and so has a Federal Court judge been talking about his own long standing clinical depression. This post looks at what might be a sad case of a mentally ill lawyer who defended himself, and got me thinking about how mental illness is treated when it emerges in the course of investigation of disciplinary complaints.
If mental illness is not relevant to the test for professional misconduct, as the Commissioner argues and at least one text asserts, I wonder whether the Commissioner should be given a discretion not to prosecute where he finds it reasonably likely that VCAT would make a finding of professional misconduct, but the practitioner does not presently hold a practising certificate and their conduct is at least in part explained by mental illness. Continue reading “A case about a bipolar lawyer”
The Federal Court has given a landmark decision about regulatory prosecutions. In federal jurisdictions and state jurisdictions which follow the new decision, professional disciplinarians like ASIC and Legal Services Commissioners will no longer be able to enter into plea bargains in the expectation that the court or tribunal hearing them will rubber stamp the agreed outcomes so long as they are ‘within the permissible range’ of penalties. But nor will disciplinary prosecutors be able to submit what the appropriate penalty ought to be. Rather, they will be limited to making submissions about the appropriate sentencing principles, and about similar outcomes in similar cases.
The powerful judgment is at odds with a paragraph of dicta in a recent decision of the Victorian Court of Appeal in that it applies the High Court’s decision in Barbaro, a criminal case, to the quasi-criminal realm. How the case plays out in Victoria remains to be worked out, but if this case goes to the High Court (and both sides have filed special leave applications), all that may change. Certainly the settlement of proceedings by regulators just got more complicated.
There seems to be a discrepancy about fundamental norms of government between the dicta of our Court of Appeal and the ratio of the Federal Court’s decision. Once that gets resolved, however, each piece of legislation setting up the regulatory regime must be construed against the backdrop of those fundamental norms, and might give rise to different outcomes. The Federal Court approached the task of working out how Barbaro applies in regulatory prosecutions in an orthodox fashion, i.e. by a process of statutory construction based on a close textual analysis of the legislative scheme as a whole.
The Chief Justice of the Federal Court allocated three judges to hear a preliminary question in the regulatory prosecution at first instance, in which the parties had already agreed on a proposed outcome, the result of a settlement (or, if you will, a plea bargain). The proceeding was brought against the CFMEU and the judgment’s aim was apparently to sort out once and for all if, and how, the High Court’s decision in Barbaro is to apply in proceedings for a penalty. The mouthful of a case is reported as Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union  FCAFC 59, but seems set to be called ‘the CFMEU Case’.
It’s quite a judgment: indignant, keen to cut cant, and argued from first principles in relation to the place of the courts in civil society. It is a further step in the demolition of the nonsense about disciplinary proceedings being sui generis, fundamentally distinct from criminal prosecutions, and (oh, spare me!) protective and not punitive in a way which means the protection of those against whom punishment is sought need not be extended. The punishment of citizens is, and must be seen to be, a job for the courts (except where parliament has expressly provided otherwise); where the State is seeking to punish citizens the label applied to the proceedings is a distraction; and in such cases, the Courts having been tasked with ascertaining the appropriate penalty, they must do so conscientiously themselves, however convenient it might be for them, for regulators, and for the regulated, to cede that task to a regulator which is part of the machinery of the executive arm of government, and to pay lip service to the inquiry conducted by the Court into the appropriateness of a deal done behind closed doors. So said the Court.
The indignation extends to the many judges and other decision makers who have convinced themselves post-Barbaro that the decision does not apply to them, often on the basis that criminal proceedings are special and proceedings for a penalty are civil proceedings and nothing like criminal prosecutions. Distinguishing Barbaro away has been de jour. Continue reading “Submissions on penalty in regulatory proceedings like ASIC and disciplinary prosecutions”
I wrote about the test case on the application of penalties privilege to disciplinary prosecutions of solicitors brought by the Legal Services Commissioner here. Now the Commissioner has made another novel application in the same case, which usefully provides some law on the appropriateness of prosecution applications for summary judgment in disciplinary prosecutions (Legal Services Commissioner v LJS  VCAT 649). The answer, according to VCAT’s President, Justice Garde? Not very appropriate, certainly not in this case, despite the complete non-involvement of the respondent solicitor, because: Continue reading “Summary judgment in a disciplinary prosecution?”
There is an old and well established privilege, the privilege against penalties, which is a relative of the privilege against self-incrimination. It entitles solicitors facing disciplinary prosecution to stay silent throughout the proceedings until the end of the Commissioner’s case unless the Tribunal makes an order requiring provision of written grounds and an outline of argument identifying in broad terms what is in issue. And even if such an order is made, compliance will not require the foreshadowing of any evidence or the admitting or denying of any facts.
The other day, a full frontal attack by the Legal Services Commissioner on the privilege in disciplinary prosecutions of solicitors did not result in it being distinguished out of existence. Though there was no contradictor in the hearing, the President of VCAT, Justice Greg Garde, gave the challenge short shrift in LSC v Spaulding  VCAT 292.
Since practitioners started increasingly exercising their right to stay silent after the disciplinary investigation has concluded and before the conclusion of the Commissioner’s case, the Commissioner has begun increasingly to seek orders for the service of a notice to admit, despite the absence of any rule-based regime in VCAT governing the consequences of non-response to such notices. Some practitioners have consented to such orders and VCAT has made them. There may be grounds to review decisions in such cases where the practitioner did not ‘waive’ the privilege, since President Ross said:
‘in the absence of a statutory provision to the contrary, or waiver by a respondent, the effect of penalty privilege is that a respondent cannot be ordered to make discovery, produce documents, provide information or respond to a notice to admit.’
Waiver as a concept in the law generally requires a high level of deliberate abandonment. No doubt for that reason, the Commissioner began some time ago to alert practitioners to the existence of the privilege when proposing such orders.
President Garde has also made clear that the Tribunal itself has a duty ‘to ensure that a respondent is informed of the options in order to make an informed and voluntary decision whether or not to waive the privilege.’
The President also observed that many professionals will wish to make admissions if for no other reason than to be seen to be appropriately cooperative, and to attenuate the issues and so diminish the costs which will be payable if the practitioner loses. My clients often make extensive admissions, sometimes make denials, but often remain silent in relation to some issues and strenuously resist the characterisation of such silences the matters about which they have stayed silent as ‘denials’. There is, however, nothing to be gained from consenting to an order to provide a response to a notice to admit. When, as I have found to be the case, the notices are framed in a manner which purports to graft onto VCAT’s procedures a presumption of admission in the event of non-denial, great procedural uncertainty is generated, because, unlike in the state courts, there are no rules of procedure which provide a legal basis to generate such an admission. And it will often be more convenient for the practitioner to craft the admissions in the form he or she considers most appropriate, possibly in a discursive letter, and at a time convenient to him or her. Furthermore, the notices to admit usually track the allegations in the Application itself extremely closely, regardless of the admissions made during the investigation in correspondence which is annexed to the Application, so that the requirement to respond to the notice to admit is akin to a requirement to serve a defence, and the drafting, filing and service of the notice to admit generates a substantial cost on a party-party basis.
Finally, for some reason, no one ever seeks orders to serve notices to admit on the Commissioner. If, for some reason, one were to consent to orders for the provision of a response to a notice to admit, it would seem appropriate to me to reserve a right to reciprocity. Continue reading “Legal Services Commissioner seeks to overturn privilege against penalties”