On 13 August 2008, Deputy President O’Dwyer found charges of misconduct at common law made out against Kylie Minogue’s one-time solicitor, the man towards the centre of the government’s Operation Wickenby investigation, Michael Brereton. See Legal Services Commissioner v Brereton  VCAT 1723. Mr O’Dwyer found he had transferred more than $2.3 million of clients’ money out of his trust account contrary to the trust accounting rules. Since he did not turn up to the hearing, the finding is not altogether surprising. His counsel explained the solicitor ‘was attending to important business matters overseas, having invested in an information technology business with links in America and Europe,’ which makes me wonder whether he could not have used some of his investments to appear by video link. The Age‘s report is here.
The Commissioner is to be commended for making some sense of the very complex business transactions in which the solicitor and his clients were involved, and achieving the making out of the allegations of misconduct which were made out. So too the Tribunal, which had a difficult task in the absence of participation by the solicitor, and produced a spare but careful set of reasons. But it was not all wins for the Commissioner.
She charged the solicitor with having a trust account deficiency when recourse to the solicitor’s trust account bank statements (which could have een compelled under s. 194(5)) would presumably have ascertained what was ultimately made clear in the hearing, that there was a mis-recording in the trust accounting records of the date of receipt of a deposit, so that a subsequent withdrawal did not in fact put the trust account into deficit at all. The charge was dismissed.
The Commissioner’s principal witness, the trust account inspector, was criticised as having gone beyond his jurisdiction in demanding documents to which he was not entitled. The Tribunal found that ‘he had allowed his frustration arising from the investigation to affect his judgement on the extent or relevance of some of the information he sought, or continued to seek’. Having done so, he obviously communicated the responses to his requests to someone prior to the proceeding in question being instituted by the laying of the charge relating to the alleged wrongful refusal to deliver up what the trust account inspector wrongfully demanded under compulsion. This was a high-stakes finding, since section 198 of the Legal Practice Act, 1996, made it a crime for a trust account inspector to divulge information obtained through an investigation except as necessary for the purposes of their report of the investigation or in certain other cases.