In Byrne v Marles [2008] VSCA 78, the subject of this earlier post, another issue arose. Justice Nettle confirmed that a complaint made to anyone other than the Commissioner is invalid as a trigger for the operation of the Legal Profession Act, 2004, but that if it finds its way to the Commissioner otherwise than by the complainant re-lodging it with her, and the complainant says he’s happy for the complaint to continue as a complaint to the Commissioner, then that counts as a deemed lodging by the complainant of a complaint with the correct regulator.The complainant and the solicitor had a correspondence tussle which included this passage from the complainant:
‘As you seem hell bent on having a complaint made against you, we have made one. Enclosed is a letter we have sent to Professional Standards division of the Law Institute of Victoria in relation to your conduct in not providing our client with a copy of the fee agreement despite repeated requests.
Furthermore, we are currently obtaining instructions from Mr Smirnios as to whether he wishes to lodge a complaint with the Legal Service Commissioner on the basis that you are threatening to sue him without providing him with a copy of the fee agreement on which you rely. We have forwarded Mr Smirnios your letter and Bill of Costs.’
Since 12 December 2005, all complaints against lawyers are supposed to go directly to the Legal Services Commissioner: s. 4.2.5 Legal Profession Act, 2004. There was supposedly much confusion under the Legal Practice Act, 1996 regime, where some complaints were properly made to the Institute and some to the Commissioner. How such nonsense could get about and become such orthodoxy I could never understand, because no one really cared who they should complain to, and whoever received the complaint simply passed it on to the correct recipient, just as is obviously still happening. Everything worked fine. If there was confusion then, it is likely that there is no less confusion now, because the much vaunted one stop shop exercises her statutory power to refer to the Institute for investigation many of the complaints she receives. Plus ça change, plus c’est la même chose.
But anyway, it is clear from the passage extracted from the complainant’s letter set out above that he was aware of the existence of the Commissioner and of the possibility of making a complaint to her, but chose instead to make his complaint, misconceivedly, to the Institute’s Professional Standards Division. The complaint was dated 27 June 2006 but was not forwarded by the Institute to the Commissioner pursuant to a standing agreement between them that such referrals would be made until 7 July 2006. [17] On the 10th, the Commissioner referred the matter back to the Institute for investigation, and provided a copy of the letter to the solicitor.
I will digress for a moment. The letter was headed ‘Complaint by [name of firm] OBO [name of firm’s client]’. When the Bureau became part of my life in late 2005, it took me months to work out what this quirk of Bureau de Spank style signified — not the capital of Haut-Mbomou in the Central African Republic, certainly. The answer is ‘on behalf of’. Sometimes, this expression seems to be used in circumstances where there is nothing in the complaint to signify that the person who signed the complaint is doing so as agent for another (typically, a solicitor on behalf of a client). In other words, I am suspicious that sometimes the Commissioner characterises complaints as being from the person whom she considers it would be most advantageous from the complainant’s camp to be from, without rigorous regard to the actual form of the writing received by her. Either that, or the clarification of the identity of the complainant came about outside the written complaint and is not communicated by the Commissioner to the solicitor. Anyone can complain: s. 4.2.4(2) Legal Profession Act, 2004, so it does not follow that a solicitor’s complaint about the treatment by her client by the solicitor complained about when he was acting for the client is necessarily lodged by the solicitor as agent for the client.
The treatment by the Commissioner of privileged information from the solicitor ought to be different according to whether the complainant is the client (and therefore the ‘owner’ of the privilege) or a third party to whom privileged information should not be communicated without the client’s consent. Should the solicitor wish to sue the complainant for malicious prosecution, it is important to know who the complainant actually was. And only complainants can claim compensation if the investigation results in a charge being laid at VCAT, or receive an ex gratia payment from the Commissioner. For all these reasons and more, including the legitimate expectation of the solicitor as a matter of natural justice to know who it is who is making the complaint against him or her, it is important for the Commissioner to ascertain properly who the complainant is. I may be boxing at shadows, but at [27] Justice of Appeal Nettle referred to the complaint as the complaint of the solicitor who signed it, rather than the complaint of the person on whose behalf the Commissioner said the solicitor had lodged it. That’s the end of my digression.
The exquisite technocrats of Mr Byrne’s camp — Respect! as Ali G would say — argued that the investigation was invalid for having been made to the wrong person. The argument was ‘The Law Institute did not have authority to receive complaints on behalf of the Commissioner. Accordingly the Commissioner does not have jurisdiction to investigate the allegations in the letter.’ At first instance, Justice Kaye held ‘that the … letter to the Institute was intended to be a “formal complaint which was sent to the professional body which, historically, had long had the responsibility of dealing with disciplinary issues raised by such complaints”; and was “intended to make a formal complaint [as] to … issues raised by the letter”; and that, because it was forwarded by the Institute to the Commissioner, it was a complaint that was “made to the Commissioner” within the meaning of s 4.2.5 of the Act.’ [21(1)]
The Court of Appeal, for whom Justice Nettle spoke, rejected the solicitor’s appeal contentions on this point at [22]ff:
‘Counsel for the [solicitor] argued that the plain and ordinary meaning of Chapter 4 of the Act is such as to establish but one means of complaint to the Commissioner – namely, by complaining directly to the Commissioner – and, in counsel’s submission, the judge erred in ignoring that meaning. Counsel argued further in support of that contention that the Commissioner did not have power under the Act to delegate the function of receiving complaints; and, in particular, that there is no provision in s 6.3.12(2) of the Act which enables the Commissioner to delegate the function of receiving complaints. Counsel also submitted that, although the Institute may have received and forwarded the complaint to the Commissioner as part of a standing arrangement, the Commissioner had no authority to enter into such an arrangement and, in counsel’s submission, it was irrelevant that the Institute was once empowered under previous legislation to receive complaints. Finally, it was said on this point that it was plain that Wisewoulds did not intend to complain to the Commissioner. The complaint was in form a complaint to the Institute and it was clear from the correspondence that Mr Marsh was aware of the right to complain to the Commissioner and chose instead to complain to the Institute.
23 I accept those submissions up to a point. As may be seen from the correspondence set out above, [the complainant’s solicitor] made his complaint to Institute advisedly. As appears from the terms of the complaint, he knew that it was possible to complain to the Commissioner but, to begin with, he chose to direct his complaint to the Institute. Nor without more could the act of the Institute in forwarding the complaint to the Commissioner have turned it into a complaint to the Commissioner. So long as [the complainant’s solicitor’s] intention was to restrict his complaint to the Institute, his complaint remained just that.
24 But that said, I see no reason to doubt that a complaint once made to the Institute can be converted with the complainant’s consent into a complaint to the Commissioner. Contrary to the appellant’s argument, there is nothing in the provisions of the Act dealing with the form of complaints to the Commissioner [footnote: see s. 4.2.6] that is inconsistent with that possibility. The Act leaves such possibilities to the common law and common sense and here there was evidence that, both before and after the Institute forwarded the complaint to the Commissioner, [the complainant’s solicitor] in effect ratified the Commissioner’s decision to treat the complaint as a disciplinary complaint to the Commissioner and refer it to the Institute.
25 On 10 July 2006, Ms Denise Broughton [sic.: Denise Boughton] of the Commissioner’s office had a telephone conversation with [the complainant’s solicitor] and, from the note of the conversation, it is apparent that [the complainant’s solicitor] was informed that the Commissioner proposed to treat his complaint as a disciplinary complaint to the Commissioner and that he was content that she should do so. There was also a letter from the Commissioner to [the complainant’s solicitor] dated 22 August 2006 in which the Commissioner informed [the complainant’s solicitor] that she had been enjoined from investigating [the complainant’s solicitor’s] complaint until the hearing and determination of the proceeding and that the hearing of the proceeding had been listed for 7 March 2007.
26 Counsel for the appellant objected that the note of Ms Broughton’s [sic.] conversation with [the complainant’s solicitor] was hearsay and thus, he submitted, inadmissible. But I think it plain from the face of the note, taken in conjunction with the [affidavit of Cara O’Shanassy] to which it was exhibited in evidence, that the note was a business record of the Commissioner and admissible in evidence as proof of the truth of its contents pursuant to ss 55(2) and (5) of the Evidence Act 1958.
27 In the result, while I accept that [the complainant’s solicitor’s] complaint may not have been at the outset a complaint to the Commissioner within the meaning of Part 4.2 of the Act, I consider that it had become such by the time the Commissioner determined to treat it as a disciplinary complaint and refer it to the Institute for investigation.’
Thanks to a Spanish doctor on Flickr for the photo of the road to Obo.
