More cases

I only just caught up with the fact that the Court of Appeal has overturned Justice Gillard’s decision in Kabourakis v Medical Board of Victoria [2005] VSC 493, the subject of an earlier post. See [2006] VSC 301.

VCAT’s Vice President Harbison, sitting in the Legal Practice List for the first time I am aware of, has contributed what appears to be a most interesting addition to the authorities about whether solicitors engage in trade and commerce for the purposes of the Fair Trading Act, 1999 (and, by analogy, of the Trade Practices Act, 1974), and whether solicitors may ever be sued under the Fair Trading Act, 1999. As to which, see this earlier post. The decision is Walsh v PJCC&A Pty [2008] VCAT 962 which I will certainly be posting a detailed analysis of.

Then a NSW decision has illustrated again the problem of sloppy regulators failing to consider whether what purports to be a complaint received by them is in fact a complaint as defined by the Act which regulates them (an allegation in both of the cases noted here). This time it was NSW’s Legal Services Commissioner, Steve Mark, getting bashed up by the NSW Administrative Appeals Tribunal’s Legal Services Division in Legal Services Commissioner v SG [2008] NSWADT 48:

’64 As stated, Mr Mark determined that a complaint had been made of deliberate charging of grossly excessive amounts of costs, when no such complaint had been made.

65 Without any further evidence or effort to obtain a valid expert opinion, the LSC instituted the complaint and brought this matter before the Tribunal on the equivocal opinion expressed by Mr McIntyre. Samantha Gulliver investigated the complaint on behalf of Mr Mark, however what, if anything, resulted from such investigation was not placed before the Tribunal.

66 The Tribunal is acutely aware that if allegations in the application are made out then a finding of professional misconduct could follow, with a resultant order that [the solicitor] was not a fit and proper person to engage in legal practice (s 497 Legal Profession Act 2004). The Tribunal considers that the allegations are so serious and the possible consequences so grave, that it could only find the impropriety charged on the basis of evidence of such persuasive force that it could be comfortably satisfied, that [the solicitor’s] alleged impropriety had been established.

67 The standard of proof is that outlined in Briginshaw v Briginshaw (1938) 60 CLR 336.

68 Simply put, there is no persuasive evidence before the Tribunal which could ground any finding of professional misconduct on the part of [the solicitor].

69 It is a gravely serious matter to seek an order that a barrister is guilty of professional misconduct. The Tribunal is seriously concerned that the LSC filed the application and then proceeded with it on such flimsy grounds. Its case was ill conceived and ill prepared.

70 [The solicitor] should not have been required to face the application and the hearing before this Tribunal. The Tribunal specifically excludes Ms Champion from any criticism as she valiantly represented her client with the deficient material available to her.

71 The Tribunal considers that the LSC did not fulfil the clear duty it owed to the profession, [The solicitor] and the Tribunal itself in prosecuting this matter without a proper basis for so doing.’

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