Judge Bowman explains Murray’s Case

VCAT’s Acting President Judge Bowman today handed down a long and important decision in relation to the relationship between alleged failures to follow the procedures for investigating complaints against professionals laid down by legislation and the jurisdiction of the disciplinary tribunal to hear charges laid as a result of such investigations. After eight months’ thought, his Honour decided that VCAT did have jurisdiction in the matter of Law Institute of Victoria Ltd v IAB [2007] VCAT 808, and that anything which could have been done better by the Law Institute were not productive of such unfairness as to invalidate the charge laid in the tribunal. In the course of doing so, he provided this summary of the leading case on point, Murray v Legal Services Commissioner (1999) 46 NSWR 224:

’78 In Murray, the Legal Services Commissioner wrote to the practitioner stating, in summary form, the nature of the complaint made, whilst also setting out a number of particulars. Towards the conclusion of the letter was the sentence:-

“I will be in touch with you again shortly concerning the particulars of this complaint.”

79 Further correspondence ensued between the Commissioner and the practitioner’s legal representative. This related substantially to the production of files, legal professional privilege and the like. One such letter from the Commissioner referred to his current intention to continue to investigate the matter. However, the practitioner’s legal representative had previously asked for a copy of the written complaint, and then wrote again, in forceful terms, asking as to how a practitioner could adequately rebut matters the subject of the complaint unless the full complaint is made available to him at the earliest possible opportunity. Subsequently, the practitioner’s legal representative wrote another letter, referring to the extraordinary position that the complaint in writing had not been disclosed to the practitioner the subject of the complaint. In any event, the Commissioner did not provide to the practitioner further particulars or a copy of the complaint, and neither did he offer the practitioner an opportunity to answer the complaint. He wrote formally that he had determined to institute proceedings against the practitioner in the appropriate Tribunal in terms of the Information and Particulars which were served with the letter, and he referred to the reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.

80 Included in the material forwarded on this occasion was an affidavit of the Commissioner stating that the Information arose from a written complaint, but he did not annex the complaint. Exhibited to his affidavit were some fifty-five documents which the Commissioner said he intended to tender in evidence at the hearing, these being the documents referred to in the Information. Of those documents, at least ten had come from sources other than the practitioner.

81 An officer employed by the Commissioner was cross-examined during the hearing. As is evident from the quotation in the letter referred to above, it appears that it was the officer’s intention to provide the practitioner with substantially more detail of the complaint, but he did not do this because the Commissioner decided not so to do. He also agreed that neither the practitioner nor anyone on his behalf had ever been provided with a copy of the original complaint because that was the decision of the Commissioner. The same officer also conceded that it was a possibility that, whilst he originally believed that he had read the complaint to the practitioner over the telephone, it may have been that what he read came from the letter which he had prepared and which he caused to be sent – the letter which contained a précis of the complaint and contained the statement that he would be touch again concerning the particulars of the complaint. As shall be discussed, this concession was treated by Priestley JA as being of considerable significance. The complaint itself, which the practitioner asked to be sent to him, was quite deliberately not so sent.

82 Amongst other things, the practitioner submitted that the Commissioner, by failing to provide him with a copy of the complaint and to give him the opportunity to respond to it before instituting proceedings in the Tribunal, was guilty of a denial of procedural fairness to him.

83 Turning to the judgments of the New South Wales Court of Appeal, the judgment from which the above factual summary has been extracted is that of Sheller JA. Sheller JA referred to various authorities, and to the principle that any person who decides any matter without hearing both sides, though that person may have rightly decided, has not done justice. There is also reference to the settled state of the law that, when a statute confers powers upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless plainly excluded.

84 At paragraph 72, Sheller JA stated that:-

“In this case the question is whether the content of the Commissioner’s statutory duty and powers or the general law require that he provide Mr Murray with a copy of the complaint and give him the opportunity to answer it … before he reached any state of satisfaction or made any decision to institute proceedings in the Tribunal pursuant to s.155(2) of the Act or made any other decision under s.155.”

85 Sheller JA then proceeded to consider a number of authorities before turning to the nature of the Commission’s duty or power. He referred to some provisions of the New South Wales Act which have no equivalent under the LPA. He then dealt with s.155 of the New South Wales Act which could be described as the equivalent of s.151 of the LPA. At paragraph 88, Sheller JA stated as follows:-

“I find it hard to imagine that the Council or the Commissioner would reach the level of satisfaction required without taking account of the legal practitioner’s response to the complaint if the legal practitioner, under compulsion pursuant to s.152 (presumably the equivalent of s.149 of the LPA) or voluntarily, gave it. The duty of the Council or the Commissioner to act either by instituting proceedings in the Tribunal or in some other way does not arise on a satisfaction or opinion that a prima face case had been made out, so that any material favouring the legal practitioner may be ignored … The duty of the Council or the Commissioner involves an attempt to predict the outcome of a hearing in the Tribunal … Ordinarily, a factor in this prediction would be the legal practitioner’s answer to the complaint, if the legal practitioner gives one, or the failure to answer the complaint, if the legal practitioner gives none. These matters lead me to conclude that a Council or the Commissioner cannot and does not reach the required satisfaction without providing the legal practitioner with a copy of the complaint calling upon the legal practitioner to respond to it. Proper performance of the Commissioner’s duty preserves, in the words of Lord Slynn of Hadley, the legal practitioner’s “right to know and to reply.”

86 Sheller JA went on to consider the situation where the Commissioner is satisfied that there is a reasonable likelihood that the facts complained of would be made out before the Tribunal, but the possible consequences are such that such practitioner could reasonably expect the opportunity to advance a case to the Commissioner that he should be satisfied only if there was a reasonable likelihood of a finding of guilt in relation to unsatisfactory professional conduct and that the practitioner was otherwise generally competent and diligent and otherwise free from complaint. This finding could result in a reprimand or a dismissal.

87 Accordingly, as stated by Sheller JA, before the Commissioner completes an investigation into the complaint and decides how it should be dealt with, the legal practitioner should be given the opportunity to see a copy of the complaint and answer it and to advance argument against it and in favour of the lesser charge or in mitigation. This would afford to the practitioner the opportunity to submit that the Commissioner should be satisfied that there was no reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct and that the complaint should be dismissed.

88 Sheller JA then stated:-

“By way of example, a legal practitioner faced, without seeing the complaint or being heard, with a finding by a Council or the Commissioner that there was a reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct, must decide, without being heard, whether to consent to a reprimand.”

89 A passage relied upon to a considerable extent by Mr Uren follows shortly thereafter at paragraph 92. It is this:-

“In this case a matter of significant difference is that the Commissioner’s duty is not merely to determine whether or not there is a prima facie case but to reach a degree of satisfaction and make decisions as to the course then to be followed. In that context the legal practitioner has an interest to press not only against the initial finding but also against the following of one particular course rather than another. Not surprisingly in that context the Councils and, until recently, the Commissioner, as a matter of practice gave the legal practitioner the opportunity to be heard. But, in my opinion, the Act itself gives rise to such an expectation as a matter of statutory construction. Necessarily this carries with it the right to see a copy of the complaint made. The failure to provide a copy of the complaint to Mr Murray and give him the opportunity to respond vitiates the institution of the proceedings under s.155.”

90 Sheller JA also referred to the following passage from the decision in Kioa v West (1985) 159 CLR 550:-

“Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the … order neither excludes nor renders otiose the obligation of the administrative decision maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.”

91 At paragraphs 2 and following, Priestley JA made the following observations:-

“… the stage was never reached where Mr Murray could be reasonably sure that he had been told all the relevant details of the complaint that had been made about him. Although Mr Murray knew a number of the features of the complaint, the actions of the Commissioner in never either making available the full terms of the complaint to him or stating with reasonable precision just what it was that he was investigating, left Mr Murray in the position where he was entitled to wait till one or other of those things happened before making any representations he wished to make to the Commissioner.

The second obstacle is that the terms of s.155 of the Legal Profession Act 1987 make it clear that after the Commissioner has completed an investigation into a complaint he must consider which of the different possible steps available to him under the section he will next take. In my opinion the section necessarily requires the Commissioner to give an opportunity to the legal practitioner to be heard in regard to the complaint which the Commissioner has investigated, before the Commissioner decides which step to take. In the absence of the legal practitioner’s having been given an opportunity to be heard on the complaint I do not see how it is possible for the Commissioner to arrive at a proper decision under s.155 on which step he should take.

If Mr Murray had at any stage been told the whole substance of the complaint that had been made against him, I doubt whether he would have been able to make out his claim of procedural unfairness. When the filenote of Mr Keher (the officer of the Commissioner referred to in paragraph 80 above) was first put before the court in the circumstances set out by Sheller JA it appeared it might be possible for the Commissioner to show that Mr Murray had been told, more than a year before the filing of the Information in the Tribunal, what the substance of the complaint against him was. However, when Mr Keher was later cross examined, this possibility disappeared. The situation apparently shown on the correspondence was in fact confirmed by this cross-examination, namely that Mr Murray had never been told the entirety of what it was that the Commissioner was investigating. He knew it in part, and it has turned out that that part was the substance of what the Commissioner was investigating, but he was never told this by the Commissioner and was never to know, until the complaint and ancillary documents were eventually produced in the course of the proceedings, the full extent of what it was that the Commissioner was investigating pursuant to the complaint.

Thus, at the conclusion of proceedings the material before the court showed that Mr Murray’s claim of procedural unfairness was well founded …”

92 At paragraphs 108 and 109, the brief observations of Stein JA contain the following:-

“It is well to remember that in this case it is alleged by the Commissioner that the legal practitioner is guilty of either professional misconduct or unsatisfactory professional conduct.

The opponent’s concession … supports the conclusion that as a matter of plain statutory construction of the words appearing in s.155, and in the context of the Act, the legal practitioner is entitled to see a copy of the complaint and have an opportunity to answer it in order to seek to convince the Commissioner that he should not form the opinion under ss(2) or might proceed to reprimand the practitioner or dismiss the complaint under ss(3) or (4).”

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