It’s all happening down at VCAT. I reported on Michael Brereton’s disciplinary trial in absentia and the finding that the charges were made out here. Now, Deputy President Dwyer has handed down his tribunal’s orders with reasons: Legal Services Commissioner v Brereton  VCAT 273. Mr Brereton did not have a practising certificate at the time of the trial, not having applied for the renewal of his old one, so cancelling his practising certificate was not an option. The only orders the Tribunal made were orders banning Mr Brereton from applying for a practising certificate for 5 years, and telling him not to even think about applying for trust money rights until mid-2018, when he will be 62. After 5 years, he can apply for a practising certificate, but the legal regulator will have to be satisfied that he is a fit and proper person to hold a practising certificate at that time. He was ordered to pay costs of $145,000. Below, I comment on three aspects of the case: costs, the openness with which the analogy with criminal sentencing is embraced, and defects in the presentation of character evidence. Meanwhile, here’s an article from April on Operation Wickenby, an investigation into Mr Brereton amongst others, which I missed.
Costs: The Commissioner sought about $180,000 in costs for counsel’s fees and expenses of one witness, the trust account inspector. There was no claim for the costs of the inspector while he was employed by the Law Institute. The Tribunal reduced the Commissioner’s solicitor-client claim by about 20% to arrive at a party-party figure in part also to take account of the Commissioner’s less than 100% success in the prosecutions.
How not to present character evidence: Rule number one when calling character evidence is to ensure that the witnesses are fully appraised of the allegations against the practitioner and, where it is possible because outcome and disposition are determined separately, of the findings. Most professionals who are disciplined are ‘first offenders’ and can find numerous people to say how honest they are. A good character witness will say that the allegations are out of character, and that having considered the allegations, the witness will continue to repose trust and confidence in the practitioner. Mr Brereton adduced evidence from 34 character witnesss including Tim Watson-Munro. Deputy President Dwyer commented:
’22. It is fair to say we were generally impressed with the loyalty shown by the witnesses, representing friendships, clients, employees, and business and legal colleagues over an extended period. Most attested to personal views of his trustworthiness, his underlying optimism and integrity, his high level of service in meeting commercial obligations, his generosity and pro bono work, and perhaps his willingness to take on too much and to work too hard.
23. Conversely, it became apparent through cross-examination that none of the witnesses had been apprised of the detail of the charges against Brereton nor our particular findings of guilt for matters such as the misappropriation. The character references were of a general nature, and this limits to a degree the weight we can place on this aspect of the evidence. When faced with particulars of our findings, most simply stated that they could only speak of their personal dealings with Brereton and that our findings appeared ‘out of character’ with the Brereton they knew.’
Criminal sentencing analogy: Quinn v Law Institute of Victoria Limited  VSCA 122 has done a great thing for the law of professional discipline. President Maxwell cut through a big accretion of bullshit in disciplinary decisions to declare that in fact fashioning orders at the end of disciplinary prosecutions was a bit like sentencing criminals, and, yes, such orders do have punitive effect. Before, many disciplinary tribunals recited the alliterative mantra ‘our duty is to protect the public, not punish the practitioner’ and then went on to mete out punishment. Fines for example do not protect the public. They punish the practitioner. To say that the punishment deters the practitioner and his peers from doing the same thing again and thereby protects the public is not to the point; it just establishes that the punishment is justified rather than being cruel and unusual. Retribution in sentencing is out of fashion, so ultimately all punishment is about protecting the public, indirectly.
It is now routine to cite Quinn’s Case and then treat the plea as what it is — a plea. Though the decision does not seem to have been cited to the Court of Appeal in that case, the High Court had said a similar thing in Rich v ASIC (2004) 220 CLR 129 in relation to orders banning people from being company directors. It cut away the cant about such orders being purely protective of the public and said — Get real! These are penal in nature.
Quinn did another useful thing. It gave some meaning to the proposition that dispositions in disciplinary cases should be primarily protective of the public, since that is how the law stands even after the acknowledgment that punitive elements come into play in fashioning disciplinary dispositions. It said that where there is a choice between two alternative dispositions, the one which best favours the protection of the public should be preferred. So in Quinn the practitioner, who was found to have grossly overcharged, had offered through his canny counsel to have his bills of costs independently reviewed, indefinitely, at his expense. Instead, the Legal Profession Tribunal suspended the practitioner’s practising certificate. The Court of Appeal reversed the decision.
The Tribunal eschewed fining Mr Brereton (the fact that he is out of the jurisdiction, in America, might have had something to do with it) and instead banned him from practising in Victoria. It might be said that this order was a triumph of protection of the public over punishment. But it is not quite as simple as that, as Justice McHugh explained in Rich v ASIC at :
‘ If the disqualification provisions were purely protective, the only issue for the court would be whether the defendant is now or will in the future be a fit and proper person to manage corporations. If the court were to find that, despite the misconduct, the defendant is now a fit and proper person to manage corporations, the court should refuse to make an order of disqualification. If the court were to find that the defendant would be a fit and proper person to manage corporations in the future, the only issue for determination would be the time when that would occur. Moreover, if the jurisdiction were purely protective, it is hard to see why orders for disqualification should be for fixed periods, as they almost invariably are. Fixed periods of disqualification suggest punishment rather than protection in the same way that disqualification from driving for a period is a punishment rather than an act protective of the public. If the jurisdiction were purely protective, one might have thought that the proper order would be indefinite disqualification with the onus on the defendant to show at some future date that he or she were now a fit and proper person to manage corporations.55 At all events, if the jurisdiction were purely protective, the defendant should have liberty to apply during the period of disqualification to show that he or she is now a fit and proper person to manage corporations.’
It is also becoming customary to point out that at the end of the ban period, the only right the practitioner gets is to apply for a certificate, underscoring the question of why orders banning people from making applications for practising certificates should be made at all, or if they are made, why they should be immutable. So, in Brereton’s case, Deputy President Dwyer’s Tribunal said at ff:
‘… Brereton is not just ‘suspended’ from practice. By virtue of his non-renewal of his practising certificate from 1 July 2008, he will have to re-apply for registration. The effect of our penalty is that he will be precluded from re-applying for some time. However, even at that time, his return to practice is not automatic. As observed in Victorian Lawyers RPA Ltd v Vodicka:
“Whether he does so apply, whether he is successful, and whether, if successful, he is granted only a restricted right of practice, are all matters which must be evaluated by the relevant bodies at that time. A successful resistance, before me, of a strike off order does not mean that he must succeed, or succeed without restrictions, or without terms, in the event that he does make such an application for a practising certificate. The question will be, as Cockburn CJ identified it in Re Pike, whether the Tribunal was then perfectly satisfied that the penalties suffered ‘had had the salutary effect of awakening him to a higher sense of honour and of principle’.”
 Brereton’s fitness to practice will therefore be assessed at the time of his re-application.’
- The South Australian take on the purpose of disciplinary proceedings
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- Depressed serial non-responder not to practise on own account until 2013
- Solicitor who blatantly lied to clients for years keeps ticket
- Barristers never used to need practising certificates