Supreme Court enjoins Legal Practice Board’s solicitors from continuing to act

ZG-W v CCW (a firm) (2007) VSC 235 is the latest in the saga of the Legal Practice Board’s practising certificate cancellation of Melbourne’s best known female criminal lawyer. She has succeeded in having the Board’s lawyers enjoined from acting further for the Board on the relatively rare basis that it would bring the administration of justice into disrepute if they were permitted to continue to act. They obtained a transcript of an Australian Crime Commission examiner’s interrogation of the solicitor. The solicitor is charged with giving false evidence in that examination which is one of the reasons why the Board refused to renew her practising certificate. Justice Bell said at [20]:

‘The solicitor at the [Office of Public Prosecutions] refused [CCW’s] request because the plaintiff was contesting the allegations and the presumption of innocence applied to her. If I may say so, this is important advice that everybody should keep firmly in mind.’

Because of the invasive powers of compulsion exercised against the solicitor as examinee, the transcript was not permitted to be used otherwise than for the purposes of the examination, though an exception was made for the purposes of the charge of giving false evidence in the examination. The Legal Practice Board, through its lawyers, procured a copy of the transcript for use in the solicitor’s VCAT challenge to the Board’s refusal to renew her practising certificate. The story involves a baptism of fire for a newly admitted solicitor:

’23 A copy of the hand up brief was collected from the OPP by a recently admitted solicitor in the [CCW] litigation department. Subject to the direction of a partner at the firm, the solicitor had carriage of the Board’s matter in the Tribunal. As you will see, he has had a baptism of fire.

24 The solicitor read the hand up brief, including the transcript. He saw the direction at the end of it. He did not think the direction was current. Nor did he appreciate its significance. Given his inexperience, this is not surprising. He copied the brief, including the transcript, and sent it to the Board and senior and junior counsel, who were not the counsel representing [CCW] in the case before me.

25 Other than that solicitor, nobody at [CCW] read the transcript, and he discussed its contents with nobody at that firm or the Board. It follows that he did not discuss it with his principal. There is no evidence he was required to do so, as might have been expected.’

There is a neat summary in a nicely written judgment by Justice Kevin Bell:

’78 Under federal-state legislation, Victoria has a scheme for conducting coercive examinations in operations or investigations concerning serious organised crime. A person cannot refuse to answer questions at an examination. Various protections have been built into the legislation to provide some protection for the civil liberties of persons examined. One of these is the power of the examiner to direct that publication of a person’s evidence is prohibited. It is a crime to contravene such a direction.

79 When the plaintiff was examined, a transcript of her evidence was taken. The examiner directed her evidence not to be published. When she was charged with giving false evidence, the direction was varied, but only to allow the evidence to be used in that prosecution.

80 The plaintiff is a solicitor. She is involved in separate proceedings in the Victorian Civil and Administrative Tribunal because the Legal Services Board had refused to renew her practising certificate for 2006/2007. [CCW] act for the Board in those proceedings.

81 Committal proceedings were conducted in relation to the false evidence charges. On the basis of a hand up brief that included the transcript, the magistrate committed the plaintiff to stand trial on the charges.

82 In the circumstances more fully described in the judgment, the magistrate allowed the media to have access to four pages of the transcript, the substance of which was published. Then the Director of Public Prosecutions authorised the Office of Public Prosecutions to give a copy of the hand up brief, including the transcript, to Corrs. The firm gave a copy to the Board and its senior and junior counsel. No variation of the direction applied to any of these circumstances.

83 At the request of the Australian Crime Commission, the copies of the transcript passed on by [CCW] have been returned to the OPP. The ACC thinks the direction has been breached and, with the OPP, is considering whether prosecutorial action should be taken.

84 The plaintiff sought from me an injunction restraining [CCW] from continuing to act for the Board in the proceedings in the Tribunal. I have decided to grant that application.

85 The critical consideration is the maintenance of the integrity of examinations. I will not condone the unsatisfactory events I have described by allowing the lawyers who obtained and passed on the transcript to continue to act for their client. Viewed objectively, as the relevant test requires, doing so would bring the administration of justice and the integrity of the judicial process into question.

86 I have also taken into account the real and sensible possibility that the information in the transcript, which I think is confidential, might be misused, albeit subconsciously or inadvertently, against the plaintiff.’

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