Non-disclosure of own negligence founds unsatisfactory conduct conviction

Law Institute of Victoria v PJR [2006] VCAT 293 (see the associated pecuniary loss dispute decision here)

The Law Institute prosecuted a solicitor for misconduct constituted by simply missing a time limit. That failed, as did most of the other charges. But he was convicted of unsatisfactory conduct in not telling his client for two years that he had missed a crucial time limit, giving rise to a conflict between duty and self-interest. After 3 days of hearings, the solicitor was fined $1,000 and ordered to contribute only a fraction of the Law Insitute’s costs.

Three days of hearing over four months on six misconduct charges gave rise to two convictions for unsatisfactory conduct in the course of engaging in legal practice that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner, one of which resulted in no order and the other in the maximum fine of $1,000, with costs of $2,000 with a stay of 30 days. Given the number of brief fees which must have been paid to the Law Institute’s counsel, the costs order suggests that the Law Institute recovered only a small proportion of its costs commensurate with its degree of success in the prosecution.

This is a rare and unusual case where nothing more than simple negligence has apparently given rise to a disciplinary charges, where the prosecutrix chose to characterise those single events as in themselves amounting to misconduct, though it is the case that the repeated alleged failure to meet cut-throat time limits was put as misconduct in the form of “substantial or consistent failure to reach reasonable standards of competence or diligence”. Technically, however, that is true only of the last charge, which sought as an alternative to each of the previous individual charges based on single events to wrap up the earlier charges and allege in an omnibus fashion an ongoing course of substantial or consistent failure to achieve competence. Each of the earlier charges seem to have been unduly ambitious and the result of the case bears out that observation.

At the end of the Law Institute’s case, the solicitor made a no case submission with partial success. The solicitor had not at that time given any evidence, so there was an analysis of whether the Law Institute had made out a prima facie case.

The solicitor asserted that the charge which alleged his failure to commence proceedings within the time limit was misconceived since it alleged that the failure to commence County Court proceedings for a declaration of serious injury — a precondition to commencing proceedings for common law compensation for personal injury unless there were a serious injury certificate or deemed serious injury certificate — caused the client to lose her rights. In fact, it was the failure to commence the proceedings, and not the failure to jump the hurdle in front of the proceedings which caused the loss of rights. Mr Howell accepted these submissions after analysing the provision in the Limitation of Actions Act which sets the 6 year period. The Law Institute sought to amend on the run, but that was not allowed. A no case submission in relation to this charge failed because “An injury might be deemed by the Act to be a serious injury in the absence of a determination, but in most cases the absence of a determination means that court proceedings cannot be issued. [The charge] appear[s] to have been drafted on that basis.” In other words, the solicitor’s point, though correct, was too semantic to warrant the striking out of the charge.

Despite successfully resisting the no-case submission in relation to this charge, the Law Institute’s prosecution ultimately failed because the failure to get up a properly put together application for a serious injury certificate between the solicitor’s retainer in January or February and the prima facie expiration in July of the limitation period was not sufficiently clearly made out or sufficiently serious to rise above simple negligence into something worthy of discipline for unsatisfactory conduct, let alone misconduct. In part that was because Mr Howell thought it reasonably likely that the prima facie expiration of the limitation period was not actually when it expired; it was reasonably likely to have been extended by a period of ignorance of the Client of the fact of her incapacity, such that during that period, the limitation period did not run. In not establishing when the limitation period in fact expired, the Law Institute failed to make out that the failure to do something by the date it had pleaded was in fact a relevant failure at all.

The next charge was of failing to keep proper records such that a deemed serious injury certificate could be availed of. The solicitor was allegedly unable to establish the date of posting of a document so as to prove a failure to respond by Workcover by the 120th day. There was simply no evidence of this fact, an apparently astonishing failure by the Law Institute either (i) to ascertain the truth and not bring the charge, or (ii) to call a witness from Workcover or to have asked the solicitor what the truth of the matter was during the phase in which it was exercising its powers to compel information under s. 149 during the investigation of the complaint. The no-case submission succeeded. The same result prevailed for the same reasons in relation to an allegation that a statutory conference was not held within a 21 day period, an even more astonishing result if in fact the facts stated in the particulars of charge was true.

The next no-case submission failed because that which there was said to be no evidence of was evidenced by an implicit admission of those facts in a formal admission of unsatisfactory conduct in response to this charge of misconduct, where the species of misconduct alleged was merely a more serious form of the species of unsatisfactory conduct admitted instead, that is a persistent or serious failure to achieve competence as opposed to simple incompetence. The solicitor accordingly went into evidence on this charge, and admitted that his conduct amounted to unsatisfactory conduct, but successfully denied it amounted to misconduct. Mr Howell concluded:

“In the context of the legislation at that time undergoing constant change, and in the context of the short time limits being applicable at almost every stage of the proceedings, I am not satisfied that the omission amounted to misconduct, either in accordance with the statutory definition or at common law. My view is that the omission was negligent and amounted to unsatifactory conduct [as admitted].”

The next no-case submission was in relation to an allegation of a failure to commence within time County Court proceedings for a serious injury determination when no serious injury certificate or deemed certificate was available. The charges contained errors, and the only evidence relied on by the Law Institute was a letter from the solicitor’s file which advised that Workcover had objected to the non-commencement of the proceedings within the time limit. Mr Howell concluded “The letter did nothing more than notify [the client] of a contention made by Workcover and then, quite appropriatelly where such a contention is made, it notified [her] that she should consult another solicitor.” The no-case submission was successful.

The next no-case submission was that the charge was misconduct which could not be made out on the facts alleged, and that the fact that there was a formal admission that could give rise to a finding of unsatisfactory conduct was beside the point. The admission was that the solicitor “was in error in failing to advise the [client] in a timely manner that [the solicitor] and the firm were in a position of conflict of [duty and] interest and that she should seek other legal advice”. The no-case submission failed, no doubt becausee it was open to Mr Howell to make a finding of unsatisfactory conduct instead of misconduct at the end of any hearing of a misconduct charge.

The Law Institute succeeded in establishing unsatisfactory conduct on this charge. The solicitor had notified his professional indemnity insurer of circumstances likely to give rise to a negligence claim more than 2 years before he sent the letter which suffered from a want of frankness and accuracy in advising that Workcover had relied on a “technical defence”. The solicitor said he had hoped that proposals for legislative change might fix the problem, but that they never eventuated. Mr Howell said:

“I regard the long delay in providing information to Mrs. Chen as being more serious than the attempt to blame WorkCover. In circumstances where common law rights may have been lost because of Mr. Robinson’s omission, a delay of over two years in notifying Mrs. Chen that such was the case came close to misconduct. However, I am not satisfied to the required degree that the conduct of Mr. Robinson amounted to misconduct.”

He was fined $1,000, the maximum fine available.

Kim Knights was for the Law Institute and Danny Masel for the solicitor.