Misconduct charge no. 21 against Victorian silk stayed as abuse of process

The latest and possibly last chapter in the tribulations of Victoria’s most senior female silk is to be found in M v VCAT [2007] VSC 89, a decision of Justice Mandie. The barrister was charged on 4 July 2005 with 24 charges of misconduct, and ended up after a hearing of the first half of the charges with a finding of only 4 counts of unsatisfactory conduct. All but one of the second half were abandoned, but the Bar, as prosecutor, sought to amend the last remaining charge so as to substitute an allegation of unsatisfactory conduct for the original charge of misconduct. VCAT found it had no power to grant leave to amend a charge, and the barrister convinced the Supreme Court to stay the hearing of the last charge as an abuse of process, VCAT having refused to do so. It was an abuse because the Bar wished to proceed with the misconduct charge not so as to make out an allegation of misconduct, but so as to provide a vehicle for a finding of unsatisfactory conduct under a statutory power which empowered VCAT to make a finding of unsatisfactory conduct after hearing a misconduct charge. Justice Mandie found:

‘[58] … It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge [i.e. unsatisfactory conduct]. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.’

At a directions hearing just before Christmas 2005, 4 months after the laying of the charges, VCAT-pretending-to-be-the-Full-Legal-Profession-Tribunal suggested that the charges be heard in two roughly equal tranches. The parties acquiesced in that procedure, and the Bar made it clear that there was no abandonment of the second tranche.

The first tranche took 20 hearing days in April and May 2006. The opening went at least 6 days. The barrister was cross-examined for 2 days. Ten of the charges were not made out. The other 4 charges were not made out either, but VCAT exercised the power under s. 161 of the Legal Practice Act, 1996 (“A legal practitioner … charged only with
misconduct may be found guilty instead of unsatisfactory conduct.”) In other words, a breach of the rule specified in 4 of the misconduct charges was made out, but the thing which distinguishes unsatisfactory conduct and misconduct in breaching a conduct rule — the intention to breach the rule, or at least the recklessness as to whether conduct would breach the rule — was not made out. The decision given on 14 July 2006 was 186 pages, and 55,500 words long: Victorian Bar Inc v M [2006] VCAT 1417. It came down a year after the laying of the charges.

Section 157 of the Legal Practice Act, 1996 required the Tribunal to hear all charges laid with it. Following the hearing and decision in the first tranche of charges, the Bar indicated that it would lead no evidence at the hearing of all but one of the remaining charges — effectively abandoning them — and indicated that it would seek to amend charge no. 21 so as to allege unsatisfactory conduct rather than misconduct. VCAT refused the amendment application, saying it had no power to amend charges. The Bar then indicated that it would proceed with the misconduct charge notwithstanding its indication to VCAT that it did not expect to be able to make the charge out, but would invite VCAT to exercise the s. 161 power in the same way as it had done in relation to the 4 of the charges originally heard which were not entirely unsuccessful.

On 26 October 2006 the plaintiff sought an order by way of judicial review under Order 56 of the Supreme Court Rules, permanently staying the further prosecution or hearing of charge 21 on the ground of abuse of process and, further or alternatively, orders in the nature of prohibition prohibiting the Bar from further prosecuting charge 21 and prohibiting the Tribunal from proceeding to hear and determine charge 21. As recounted above, the application succeeded.

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